UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MELBIN JAVIER OCHOA, et al.,
Plaintiffs,
V. Civil Case No. 12-2072 (RJL)
DAVID NUYEN, et al.,
Defendants. F I L E D
APR 2 9 2020
MEMORANDUM OPINION Clerk, U.S. District & Bankruptcy

 

Courts for the District of Columbla
April 2F, 4020 [Dkt. #64, #66, #67]

Plaintiffs Melbin Javier Ochoa and Cesar Gaytan Rodriguez (“plaintiffs”) filed this
suit alleging violations of the Fair Labor Standards Act and the D.C. Minimum Wage Act
Revision Act by defendants David Nuyen, USA Home Champion Realty, Inc., Opmax
Management, LLC, and Opmax, LLC (“defendants”). After defendants defaulted, I
referred this case to a magistrate judge to calculate plaintiffs’ damages and recommend an
award. On September 20, 2016, Magistrate Judge Robinson issued a Report and
Recommendation (“2016 R & R’’) recommending that plaintiffs receive a default judgment
award of $149,069.75, to which both plaintiffs and defendants filed objections. Upon
consideration of Magistrate Judge Robinson’s 2016 R & R, the parties’ briefing, and the
applicable case law and legal standards, the Court ADOPTS IN PART the 2016 Report and

Recommendation [Dkt. #64], ADOPTS Plaintiffs’ Objections to the Report and
Recommendation [Dkt. #66], and OVERRULES Defendants’ Objections to the Report and
Recommendation [Dkt. #67].
BACKGROUND

Plaintiffs Melbin Javier Ochoa and Cesar Gaytan Rodriguez filed this suit on
December 31, 2012, alleging violations of the Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. §§ 201 et seg., and the D.C. Minimum Wage Act Revision Act of
1992, D.C. Code §§ 32-1001 et seqg., against defendants David Nuyen, USA Home
Champion Realty, Inc., Opmax Management, LLC, and Opmax, LLC. See Compl. [Dkt.
#1]. Plaintiffs performed property maintenance and related work at defendants’ residential
rental properties in Washington, D.C. for several years until 2013. /d. 92. Plaintiffs allege
that they were never paid overtime wages despite routinely working 66 to 72 hours per
week. Id. §§ 28, 31. When they were each terminated in January 2013 after filing their
complaint, plaintiffs filed an Amended Complaint on February 5, 2013, adding two causes
of action for unlawful retaliation. See First Am. Compl. J] 61-64, 71-76 [Dkt. #4].

Defendants were served with a copy of plaintiffs’ Amended Complaint on April 27,
2013 but failed to file an answer or otherwise respond. See Summons [Dkt. #7, #8, #9,
#10]; see also Greenberg Aff. J 2 [Dkt. #11]. The Clerk of Court entered a default against
defendants USA Home Champion Realty, Inc., Opmax Management, LLC, and Opmax,
LLC on June 3, 20 13, see Clerk’s Entry of Default [Dkt. #12], and against defendant Nuyen
the following day, see Clerk’s Entry of Default [Dkt. #14].

On September 4, 2013, the Court referred this action to Magistrate Judge Deborah

A. Robinson to calculate plaintiffs’ damages and make a recommendation. See Order [Dkt.

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#16]. On August 22, 2014, Magistrate Judge Robinson, having rejected defendants’
attempt to participate in the hearing, held an ex parte damages hearing. See 8/22/2014
Min. Entry. On February 13, 2015, Magistrate Judge Robinson issued a Report and
Recommendation recommending that default judgment be entered for plaintiffs in the
amount of $149,069.75. See Report and Recommendation (“2015 R & R”) at 1 [Dkt. #37].
In a ruling on July 6, 2015, I rejected Magistrate Judge Robinson’s Report and
Recommendation and granted defendants’ Motion for Reconsideration because defendants
had made numerous attempts to voice their objections to plaintiffs’ damages calculation
but were denied the opportunity to participate in the damages hearing. See Mem. Order at
2 [Dkt. #39]. I ordered that Magistrate Judge Robinson “hold a de novo hearing on
damages, in which both parties may participate,” and “issue a revised recommendation.”
Id. at 5.

The de novo damages hearing was held from December 3, 2015 to December 9,
2015. See 12/9/2015 Min. Entry. Consistent with his prior testimony, plaintiff Ochoa
testified under oath that he worked approximately 66 hours each week for 159 weeks but
was not paid a “half time” premium for each hour worked in excess of 40 hours. See
12/9/2015 Min. Entry; 2016 R & R at 2,4; 2015 R & Rat 8. Plaintiff Rodriguez similarly
testified under oath that he worked approximately 72 hours each week for 160 weeks but
was also not paid a “half time” premium. See 12/9/2015 Min. Entry; 2016 R & R at 2, 4;
2015 R & R at 9. The defense presented one witness, Sung Dang, who was the building
contractor responsible for paying plaintiffs Ochoa and Rodriguez biweekly. He claimed

that the amounts he paid them varied based on the work completed. Tr. 56:22—23, 59:18-

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20 [Dkt. #61]. He testified that he sometimes paid Ochoa “around $400 or $500,” but other
times he paid Ochoa between $800 and $900. Tr. 57:22—58:1. He also testified that he
sometimes paid Rodriguez “around $700 every two weeks” but on occasion paid Rodriguez
up to $1100. Tr. 60:13-23. While the defense attempted to introduce notes purportedly
containing payment records created by Dang, Magistrate Judge Robinson ruled that the
notes were inadmissible because they did not fit within the business records exception to
the hearsay rule, because they were untimely submitted to the court, and because they were
subject to spoliation by counsel’s notations. See Tr. 51:19-—52:7.

On September 20, 2016, Magistrate Judge Robinson issued a new Report and
Recommendation recommending that default judgment be entered for plaintiffs in the
amount of $149,069.75, the same amount recommended in 2015. See 2016 R & R at 6.
Defendants objected to the new R & R, arguing Magistrate Judge Robinson erred by
refusing to credit Dang’s testimony, by excluding payment records kept by Dang, and by
overlooking defendant’s argument that any failure to make overtime payments was not
willful but in good faith. Defs.’ Objs. to R & R [Dkt. #67]. Plaintiffs objected to Magistrate
Judge Robinson’s new R & R on the limited basis that the 2015 R& R’s damages
calculation “does not encompass any of the time and [attorney’s] fees Plaintiffs incurred
after the Court issued the 2015 Report and Recommendation.” Pls.’ Objs. to R & R at 2
[Dkt. #66].

STANDARD OF REVIEW
Upon a plaintiff's request, Rule 55(b) of the Federal Rules of Civil Procedure

authorizes the court to enter against a defendant a default judgment for the amount claimed

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and costs. Fed. R. Civ. P. 55(b). While a “default establishes a defendant’s liability, the
court is required to make an independent determination of the sum to be awarded unless
the amount of damages is certain.” Int’! Painters & Allied Trades Indus. Pension Fund v.
R.W. Amrine Drywall Co., 239 F. Supp. 2d 26, 30 (D.D.C. 2002). A plaintiff who moves
for default judgment must prove his entitlement to the requested damages. Jd. The court
may conduct a hearing regarding the scope of damages, Fed. R. Civ. P. 55(b)(2), and may
also rely on sufficiently detailed affidavits and evidence, see Flynn v. Mastro Masonry
Contractors, 237 F. Supp. 2d 66, 69 (D.D.C. 2002).

When a party objects to a magistrate judge’s recommended disposition, the Court
reviews de novo the portions of the recommendation to which the parties objected. Fed.
R. Civ. P. 72(b)(3); LCvR 72.3(c). The Court may “accept, reject, or modify the
recommended disposition” and may “receive further evidence,” as necessary. Fed. R. Civ.
P. 72(b)(3).

ANALYSIS

Magistrate Judge Robinson recommended that the Court order damages in the
amount of $149,069.75.! She found that plaintiffs testified reliably regarding the number
of overtime hours each of them worked and that defendants “made no attempt to impeach
their testimony during cross-examination.” 2016 R & R at 4. I agree. Where a full

documentary record of plaintiffs’ hours worked is unavailable, the Court may “rely[] on

 

' This damages figure would award plaintiff Ochoa $20,670 in overtime wages, an equal amount in
liquidated damages, $12,800 in lost wages, and $12,800 in mental and emotional distress damages; it would
award plaintiff Rodriguez $25,600 in overtime wages, an equal amount in liquidated damages, $9,600 in
lost wages, and $9,600 in mental and emotional distress damages; and it would award attorney’s fees and
costs totaling $11,729.75.
affidavits, documentation, or an evidentiary hearing” to make a finding regarding the
amount to be awarded as damages. Ventura v. L.A. Howard Constr. Co., 134 F. Supp. 3d
99, 104 (D.D.C. 2015). Plaintiff Ochoa testified under oath that he worked approximately
66 hours each week for 159 weeks without overtime pay, and plaintiff Rodriguez similarly
testified under oath that he worked approximately 72 hours each week for 160 weeks
without overtime pay. See 2015 R & R at 8-9. Because FLSA puts the burden on the
employer to maintain records of hours worked and wages paid, where the employer has
failed to do so, the Court may accept plaintiffs’ detailed approximations “as a matter of
just and reasonable inference.” Arias v. U.S. Serv. Indus., Inc., 80 F.3d 509, 512 (D.C. Cir.
1996).

Defendants object to Magistrate Judge Robinson’s failure to credit Dang’s
testimony that plaintiffs were paid differing amounts every two weeks based on their skill
level and job performances. Dang, the defense’s sole witness, testified that he paid Ochoa
and Rodriguez varied amounts biweekly—from $400 or $500 to $800 or $900 for Ochoa,
and from $700 to $1100 for Rodriguez—based on the work completed. Tr. 56:22-23,
57:22-58:1, 59:18-20, 60:13-23. As noted, however, the burden is on “the employer to
come forward with evidence of the precise amount of work performed.” Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687-88 (1946). “Ifthe employer fails to produce such
evidence, the court may then award damages to the employee, even though the result be
only approximate.” Jd. I find that Dang’s uncorroborated testimony is not sufficient to
overcome plaintiffs’ detailed testimony supporting their estimates of the amount of

uncompensated work they performed. See Arias, 80 F.3d at 512. Dang’s testimony makes

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little sense in light of plaintiffs’ testimony that they were consistently paid a $10/hour
wage. To say the least, it certainly does not constitute evidence of the “precise amount of
work performed,” which an employer is required to produce to rebut reasonable inferences
of the employees’ uncompensated work. See Anderson, 328 U.S. at 687.

Defendant Nuyen also objects to Magistrate Judge Robinson’s exclusion of Dang’s
notes as inadmissible hearsay, as not timely submitted, and as improperly altered.
Magistrate Judge Robinson held Dang’s notes, offered as Exhibit A, to be inadmissible
under the business records exception to the hearsay rule because these records “were not
maintained in the regular course of business, but were created and located under
exceptional circumstances.” 2016 R & R at 5. Alternatively, Magistrate Judge Robinson
held the documents inadmissible “due to spoliation by defense counsel” because the
defense counsel had notated the margins “to more easily identify when the document
referenced [p]laintiffs by name.” Jd. at 6. She further noted “defense counsel’s failure to
comply with the Court’s scheduling order with respect to the submission of exhibits.” Jd.
at 5.

Any of Magistrate Judge Robinson’s three alternative grounds for excluding Dang’s
notes would be sufficient. A record is admissible under the business records exception
only if: (1) “the record was made at or near the time by — or from information transmitted
by — someone with knowledge;” (2) “the record was kept in the course of a regularly
conducted activity of a business;” (3) “making the record was a regular practice of that
activity;” (4) “all these conditions are shown by the testimony of the custodian or another

qualified witness;” and (5) “the opponent does not show that the source of information or

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the method or circumstances of preparation indicate a lack of trustworthiness.” Fed. R.
Evid. 803(6). Cleanly, Dang’s notes fail at least two of these requirements. Dang testified
that records regarding the commissions paid to the two plaintiffs in 2011 and 2012 were
“prepared around 2013.” Tr. 18:6—9, 19:17. The records were therefore not “made at or
near the time” the events occurred. See Fed. R: Evid. 803(6). Also, while claiming that he
did keep records regarding the two plaintiffs, Dang testified that he “normally do[es]n’t
keep any records” and that these records were “found accidentally.” Tr. 12:5-7.
Accordingly, the records were also not created and kept as “a regular practice of” a business
activity. See Fed. R. Evid. 803(6).

It is also undisputed that Dang’s payment records were altered by defendants’
counsel in preparation for litigation. See Tr. 37:15—38:17, 46:20-22, 49:15-50:14. This
fact alone renders the records inadmissible. See Fed. R. Evid. 803(6) (evidence is
inadmissible if “the source of information or the method or circumstances of preparation
indicate a lack of trustworthiness”); Zhi Chen v. Dist. of Columbia, 839 F. Supp. 2d 7, 12
(D.D.C. 2011). For all of these reasons, I conclude Magistrate Judge Robinson properly
excluded Dang’s notes. I therefore adopt Magistrate Judge Robinson’s overtime wages
calculations.

Finally, Defendant Nuyen objects to Magistrate Judge Robinson’s decision to apply
a three-year statute of limitations and award liquidated damages based on a finding that
defendants had not acted in good faith. Under FLSA, the statute of limitations is two years
if the violation was in good faith but three years if the violation was willful. 29 U.S.C.

§ 255(a). Similarly, under FLSA, any employer who violates section 207 of FLSA is liable
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for unpaid overtime compensation as well as liquidated damages, though the court in its
sound discretion may award reduced liquidated damages based on a showing by the
employer that the violation was in good faith. See id. §§ 216(b), 260. The burden is on
the employer to show that it acted in good faith. See Arias, 80 F.3d at 512. A good faith
defense “depends on an affirmative showing of a genuine attempt to ascertain what the law
requires, not simply on a demonstration of the absence of bad faith.” Dove v. Coupe, 759
F.2d 167, 175-76 (D.C. Cir. 1985). Defendants have produced no evidence that they relied
on legal advice or other guidance in failing to pay overtime wages as FLSA requires. I
thus reject defendants’ objection and adopt Magistrate Judge Robinson’s liquidated
damages calculation and application of a three-year statute of limitations.

Magistrate Judge Robinson found that her initial damages calculation still applied,
2016 R & R at 6, and thus recommended that the Court award damages to plaintiff Ochoa
in the amount of $66,940, which includes $20,670 in overtime pay, $20,670 in liquidated
damages, $12,800 in lost wages, and $12,800 in mental and emotional distress. 2015
R & R at 8-9. She recommended that the Court award damages to plaintiff Rodriguez in
the amount of $70,400, which includes $25,600 in overtime pay, $25,600 in liquidated
damages, $9,600 in lost wages, and $9,600 in mental and emotional distress. Jd. at 9-10.
Finally, she recommended that default judgment also include reasonable attorney’s fees
and costs in the amount of $11,729.75, for a total damages award of $149,069.75. Id. at
10.

Plaintiffs object to Magistrate Judge Robinson’s recommendation only on the basis

that it does not encompass attorney’s fees incurred since her original recommendation in

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2015. As they note, plaintiffs are entitled to attorney’s fees for their attorney’s additional
work after the 2015 Report & Recommendation was issued. Indeed, under FLSA, an award
of attorney’s fees to the prevailing party is mandatory. Driscoll v. George Washington
Univ., 55 F. Supp. 3d 106, 112 (D.D.C. 2014). An award of attorney’s fees should
compensate the prevailing party for all the hours reasonably expended on a successful
litigation, including those spent preparing an appeal or litigating the case on remand. See
Perkins v. Standard Oil Co. of Cal., 399 U.S. 222, 223 (1970); Westmoreland v. CBS, Inc.,
770 F.2d 1168, 1179 (D.C. Cir. 1985).

Plaintiffs seek attorney’s fees for an additional 84.6 hours spent by their attorney
Jason Friedman on this matter since the 2015 R & R’s issuance, resulting in an additional
$27,105 in fees. Pls.’ Objs. toR & R at 2. Once a plaintiff has shown he is entitled to
attorney’s fees, the district court must “determine what fee is reasonable.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). The proper amount of attorney’s fees is calculated
“by multiplying the number of hours reasonably expended on the litigation times a
reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984). A party seeking
attorney’s fees must affirmatively demonstrate, through documentary evidence and
detailed affidavits, the amount of time expended on the matter and the appropriateness of
the attorneys’ hourly rates. See Ventura, 134 F. Supp. 3d at 103, 105-06. As such, I must
evaluate the attorneys’ hourly rates and the amount of time expended to determine whether
they are reasonable.

Attorneys’ rates are reasonable if they are “in line with those prevailing in the

community for similar services by lawyers of reasonably comparable skill, experience, and

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reputation.” Covington v. Dist. of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995) (quoting
Blum, 465 U.S. at 896 n.11). Our Circuit Court allows that attorney’s fees be calculated
pursuant to the Laffey Matrix employed in Salazar v. District of Columbia, 123 F. Supp.
2d 8 (D.D.C. 2000). See Covington, 57 F.3d at 1109. With their objection, plaintiffs filed
a declaration from their attorney detailing his billing rates and his legal services provided
in this matter, see Pls.’ Objs. to R & R, Ex. 1, Decl. of Jason D. Friedman (“Friedman
Decl.”) [Dkt. #66-1], as well as a copy of the billing statement that reflects all professional
time expended and costs incurred, see Pls.’ Objs. to R & R, Ex. 2, Invoice [Dkt. #66-2].
According to this declaration, attorney Jason D. Friedman billed an additional 84.6 hours
at a rate of $325.00 per hour after the 2015 R & R, see Friedman Decl. 7§ 1, 5, for
performing and briefing detailed damage calculations, preparing for and attending multiple
hearings, and briefing plaintiffs’ objection to the R & R, see Invoice at 1-3. Plaintiff's
counsel’s billing rate of $325.00 is consistent with the Laffey Matrix and is reasonable
given counsel’s risk in handling this case on a contingency fee basis, the overall amount of
damages, and the level of skill required. Plaintiff's counsel’s declaration and the attached
invoice also provide sufficient detail to enable the Court to “make an independent
determination whether or not the hours claimed are justified.” Nat’l Ass’n of Concerned
Veterans v. Sec’y of Def, 675 F.2d 1319, 1327 (D.C. Cir. 1982) (per curiam). Having
independently reviewed plaintiff's counsel’s claimed hours, I find that none of these tasks
were “duplicative, excessive, or otherwise unnecessary.” Ventura v. Bebo Foods, Inc., 738
F. Supp. 2d 8, 34 (D.D.C. 2010). Upon reviewing the parties’ briefing, the Court is satisfied

that attorney Jason Friedman expended a reasonable amount of time on this litigation

1]
considering the specific circumstances of this case and charged a reasonable billing rate
consistent with the Laffey Matrix. Accordingly, I adopt plaintiffs’ objections to the 2016
Report & Recommendation and award plaintiffs an additional $27,105 in attorney’s fees,
CONCLUSION

Upon consideration of Magistrate Judge Robinson’s R & R, the parties’ briefing,
and the applicable case law and legal standards, the Court adopts Magistrate Judge
Robinson’s Report and Recommendation awarding plaintiffs $149,069.75, except to the
extent the Court awards plaintiffs an additional $27,105 in attorney’s fees incurred after
the issuance of the February 2015 Report and Recommendation. An appropriate Order

will issue with this Memorandum Opinion.

RICHARD $rle#ON
United States District Judge

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