Zommick v. Lewis Construction Company LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Mindy Zommick,
Plaintiff,
v.
Lewis Construction Company LLC, et al.,
Defendants.
No. CV-23-00636-PHX-DJH
ORDER
At issue is Plaintiff’s Motion for Entry of Default Judgment (“Motion”) against Lewis
Construction Company LLC, Chad Lewis, Brandin Lewis, and Jenniffer Lewis (listed in
Doc. 1 as Jane Doe Lewis) (collectively “Defendants”) (Doc. 46). Defendants did not file
a response. For the reasons set forth below, the Court will grant default judgment against
all Defendants.
I. Background
Plaintiff Mindy Zommick filed a Complaint on April 15, 2023, against Defendants
(Doc.1). The Complaint alleges claims under the Fair Labor Standards Act (“FLSA) for
unpaid overtime and federal minimum wages, the Arizona Minimum Wage Act
(“AMWA”) for unpaid state minimum wages, and under the Arizona Wage Act (“AWA”)
for unpaid wages. (Id.) Plaintiff served Defendants Lewis Construction Company LLC
and Brandin Lewis on June 1, 2023 (Doc. 16–17). Defendants Chad Lewis and Jenniffer
Lewis waived service on July 18, 2023 (Doc. 14–15). Defendants, despite initially
answering the Complaint, failed to defend this case further even after the Court struck their
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original Answers (Doc. 9, Doc. 21, Doc. 42). The Clerk of the Court entered a default
against Defendants on November 26, 2024 (Doc. 44). Plaintiff then filed the present
Motion (Doc. 46). Defendants have not responded. Plaintiff also requests the Court allow
them to recover attorney fees and costs. (Id. at 11)
II. Legal Standard for Default Judgment
A district court’s decision to enter a default judgment is discretionary. Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). A court may order default judgment
following the entry of default by the Clerk of the Court. Fed. R. Civ. P. 55(b). When
considering the merits and sufficiency of a complaint for a default judgment, a court
accepts a complaint’s well pled allegations as true. Geddes v. United Fin. Grp., 559 F.2d
557, 560 (9th Cir. 1977). However, the plaintiff must still prove all damages sought in the
complaint. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). The
Ninth Circuit has articulated the following factors to help courts determine when to
exercise this discretion:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's
substantive claim, (3) the sufficiency of the complaint, (4) the sum of money
at stake in the action; (5) the possibility of a dispute concerning material
facts; (6) whether the default was due to excusable neglect, and (7) the strong
policy underlying the Federal Rules of Civil Procedure favoring decisions on
the merits.
Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). After reviewing the Eitel
factors, the Court finds that they weigh in favor of default judgment on all claims.
A. The Possibility of Prejudice
The first Eitel factor considers possible prejudice to the plaintiff. Eitel, 782 F.2d at
1471. The possibility of prejudice exists when the plaintiff “would be denied the right to
judicial resolution of the claims presented and would be without other recourse for
recovery.” Elektra Entm’t Group, Inc. v. Crawford, 226 FRD 388, 392 (C.D. Cal. 2005).
Defendants have refused to participate in this litigation after their initial answer was struck
down. (Doc. 46 at 2). As a result, Plaintiff has no other recourse but default judgment.
This factor supports therefore entry of default judgment. PepsiCo, Inc. v. California
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Security Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002).
B. Merits of the Claims and Sufficiency of the Complaint
The second and third Eitel factors favor default judgment where the complaint states
a sufficiently plausible claim for relief under the Rule 8 pleading standards. See Danning
v. Lavine, 572 F.2d 1386. 1388 (9th Cir. 1978) (finding plaintiff must state a claim on
which they can recover). Because both factors deal with the content of the complaint, they
are often analyzed together. See Ramos Perez v. Evolet’s Painting Services LLC, 2025 WL
4063609, at *2 (D. Ariz. Dec. 15, 2025); see also Dr. JKL Ltd. V. HPC IT Educ. Ctr., 749
F.Supp.2d 1038, 1048 (N.D. Cal. 2010). For purposes of a default, all allegations made in
a complaint, that are not related to damages, are taken as true. Geddes, 559 F.2d at 560.
Plaintiff brings a claim under the FLSA minimum wage and overtime provisions and state
law claims under the AMWA and the AWA. The Court will examine each claim
individually.
1. FLSA Claims
a. The FLSA
The FLSA was passed “to protect all covered workers from substandard wages and
oppressive working hours, labor conditions [that are] detrimental to the maintenance of the
minimum standard of living necessary for health, efficiency and general well-being of
workers.” Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739 (1981)(internal
quotes and citations omitted). To state an FLSA claim, the plaintiff must show they are a
“covered worker”, and not an independent contractor. See Adame v. North Mountain
Foothills Apartments LLC, 2025 WL 1927673, at *2 (D. Ariz. July 14, 2025) (finding
independent contractors are not covered by the FLSA); see also Rutherford Food Corp. v.
McComb, 331 U.S. 722, 728-729 (1947)(finding employee does not “include those who,
without any express or implied compensation agreement, might work for their own
advantage on the premises of another.”) (internal quotes and citation omitted). The Court
must therefore determine if Plaintiff was an employee under the FLSA.
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b. Employer-Employee Relationship
The FLSA defines an “employee” as “an individual employed by an employer.”
Before the Court can determine if Plaintiff is an employee of any of the Defendants, it must
determine which if any of the Defendants are employers under the FLSA. The FLSA
defines “employer” as “any person acting directly or indirectly in the interest of an
employer in relation to an employee”. (29 USC § 203 (d), (e)(1)). The Ninth Circuit has
described a four-factor test to identify if an alleged employer is an employer. Gilbreath v.
Cutter Biological, Inc., 931 F.2d 1320, 1324 (9th Cir. 1991). These four factors are:
“whether the alleged employer (1) had the power to hire and fire the employees,
(2) supervised and controlled employee work schedules or conditions of employment,
(3) determined the rate and method of payment, and (4) maintained employment records.”
Id. (quoting Bonnet v. California Health & Welfare Agency, 704 F.2d 1465, 1470
(9th Cir. 1983)).
Here, Defendants Lewis Construction Company LLC, Chad Lewis, Brandin Lewis,
and Jenniffer Lewis are all individually alleged to have had the power to hire and fire
employees, supervised and controlled their work schedule, determined rate and method of
payment, and maintained employment records. (Doc. 1 ¶¶ 14–18). These allegations,
taken as true, support the claim that all four Defendants were employers under the FLSA.
(Id.)
The Court must next determine if Plaintiff was an employee or independent
contractor under the FLSA. Plaintiff was classified by Defendants as an independent
contractor but alleges in her Complaint that this was a misclassification. (Doc. 1 at ¶ 39).
How Defendant classified Plaintiff is not dispositive because the economic realities of the
situation, not the contractual label or subjective intent of the parties, determine the
employment status for purposes of the FLSA. Real v. Driscoll Strawberry Ass’n, 603 F.2d
748, 755 (9th Cir. 1979). The Ninth Circuit has established a six-factor test to help
distinguish employees from independent contractors. Id. at 754. These six factors include:
1) the degree of the alleged employer's right to control the manner in which
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the work is to be performed; 2) the alleged employee's opportunity for profit
or loss depending upon his managerial skill; 3) the alleged employee's
investment in equipment or materials required for his task, or his
employment of helpers; 4) whether the service rendered requires a special
skill; 5) the degree of permanence of the working relationship; and 6)
whether the service rendered is an integral part of the alleged employer's
business.
Id. The circumstances of the whole activity, instead of the presence or absence of any one
specific factor, are dispositive in determining whether there was an employee or employer
relationship. Id.
Plaintiff alleges that while performing work for Defendant, she had no right to
refuse work assigned to her. (Doc. 1 ¶ 43(h)). She further alleges that Defendants
controlled her schedule and required her to wear a uniform. (Doc. 1 ¶¶ 40, 43(d)). This
satisfies the first factor, that Defendants controlled the manner in which work is performed.
Real, 603 F.2d at 754. When the alleged employer has control over the manner in which
work is performed, this factor weighs towards an employee-employer relationship.
Donovan v. Sureway Cleaners, 656 F.2d 1368, 1371 (9th Cir. 1981). Plaintiff further
alleges that she had no opportunity to profit or suffer loss from the company and was not
hired as a manager. (Id. at ¶¶43(e), 59–63). This addresses factor two, the alleged
employee’s opportunity for profit or loss depending upon his managerial skill. Real, 603
F.2d at 754. When an employee has no opportunity for profit or loss based on managerial
skill, this factor weighs in favor of an employee-employer relationship. Donovan, 656 F.2d
at 1372. Plaintiff also alleges she made use of Defendants’ tools. (Doc. 1 ¶ 41). This
satisfies factor three, indicating that Plaintiff did not invest in equipment required for the
task. Real, 603 F.2d at 754. When employees do not invest in the tools or equipment
necessary for the task, the third factor weighs against the plaintiff being an independent
contractor. Donovan, 656 F.2d at 1372. Plaintiff was allegedly hired as a permanent
employee. (Doc.1 ¶¶ 43(g)). This supports factor five, suggesting there was a degree of
permanence of the working relationship between Defendants and Plaintiff. Real, 603 F.2d
at 754. When the alleged employee is hired on a permanent basis instead of a fixed term,
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this factor supports finding an employee-employer relationship. Donovan, 656 F.2d at
1372. Plaintiff additionally alleges that her work was integral to Defendants’ business.
(Doc.1 ¶43(f)). This addresses the final factor, whether the alleged employees’ work was
an integral part of the alleged employer’s business. Real, 603 F.2d at 754. When a plaintiff
is integral to the operation of the alleged employer’s business, this factor weighs in favor
of an employee-employer relationship. Donovan, 656 F.2d at 1372.
Accepting Plaintiff’s allegations as true, five of the six factors support the claim that
Plaintiff was an employee of Defendants. Geddes, 559 F.2d at 560.
c. FLSA Overtime Claims
The FLSA requires that employers pay non-exempt employees one and half times
the regular rate for any time worked more than forty hours in a single week.
29 U.S.C. § 207(a)(2). To state a claim under the FLSA’s overtime provision, the plaintiff
must allege that they were the employee of the defendant and worked for more than forty
hours without receiving proper compensation. 29 U.S.C. § 207(a)(2). As previously
analyzed, Plaintiff was an employee. See supra Section 1(b).
To meet the second element of the overtime provision, Plaintiff must allege at least
one work-week where their work exceeded forty hours and were not paid overtime wages.
Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014). This allegation
does not require mathematical precision. Id. Plaintiff alleges that she received her last
paycheck on November 1, 2022, and that she continued to work through December 27,
2022. (Doc. 1 at ¶¶ 49–50). Plaintiff alleges that for this eight-week period she received
no pay and worked 18.5 hours of overtime across the weeks of December 5, 2022, and
December 12, 2022. (Doc. 46 at 5–6). Plaintiff further alleges she was not paid for her
fifteen hours of overtime work during the workweeks of October 17,2022 and October 31,
2022. (Id. at 6). Plaintiff has thus alleged a total of four workweeks where she worked for
more than forty hours and was not paid overtime wages. This exceeds the standard for the
second element of the overtime provision. Landers, 771 F.3d at 646. Accepting the
allegations of the Complaint as true, the Court finds that Plaintiff has plausibly pled a
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violation of the FLSA’s overtime provision. Geddes, 559 F.2d at 560.
d. FLSA Minimum Wage Claims
The FLSA requires employers to pay non-exempt employees the federal minimum
wage of $7.25. 29 USCA § 206(a). To allege a violation of the FLSA minimum wage
provision, a plaintiff must show she was an employee of the defendants, covered by the
FLSA, and Defendants failed to pay her a minimum wage. Smith v. Helton Brewing
Company LLC, 2023 WL 5135142 (D. Ariz. Aug. 10, 2023) (internal quotes and citations
omitted) at *3. As discussed above, Plaintiff worked as an employee of Defendants under
the FLSA. See supra Section 1(b). She also alleges to have received no pay from
November 1, 2022, to December 27, 2022. (Doc. 1 at ¶ 51). Accepting the allegations in
the Complaint as true, Plaintiff has therefore plausibly pled a violation of the FLSA
minimum wage provision. Geddes, 559 F.2d, at 560.
2. AMWA Claims
The AMWA requires Arizona employers to pay employees the state minimum
wage, of $12.00 beginning on January 1, 2021, in addition to yearly cost of living
adjustments. A.R.S. § 23-363. “To state a claim under the AMWA, the defendant must
be an employer under the statute, the plaintiff must be a qualified employee of the
defendant, and the plaintiff must allege that she was not paid the applicable minimum wage
for hours worked.” Smith, 2023 WL 5135142 at *3 (internal quotes and citations omitted).
The AMWA defines an employer as “any corporation, proprietorship, partnership, joint
venture, limited liability company, trust, association, political subdivision of the state,
individual or other entity acting directly or indirectly in the interest of an employer in
relation to an employee[.]” A.R.S. § 23-363(B). As previously discussed when analyzing
Plaintiff’s FLSA claims, accepting Plaintiff’s alleged facts as true, all Defendants acted
either directly or indirectly in the interest of an employer in relation to an employee. See
supra Section 1(b). Therefore, the Court finds that Defendants Lewis Construction
Company LLC, Chad Lewis, Brandin Lewis, and Jenniffer Lewis are all employers under
the AMWA. A.R.S. § 23-362(B).
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The AMWA instructs the Court to consult the FLSA to determine if there is an
employee or independent contract relationship between the plaintiff and defendants.
A.R.S. § 23-362(D). The person for whom the work is performed has the burden of proof
to show the worker was an independent contractor, by clear and convincing evidence. Id.
In this case, Defendants have offered no evidence on this issue. (Doc. 46 at 2). Following
the same reasoning used to analyze Plaintiff’s FLSA claims, and with no evidence provided
to the contrary by Defendants, the Court finds that there was Plaintiff was in an employee-
employer relationship with Defendants under the AMWA. See supra Section 1(b).
Plaintiff also alleges that she was not paid at all during this from November 1, 2022, to
December 27, 2022. (Doc. 1 at ¶ 54). Therefore, accepting the allegations of the Complaint
as true, the Court finds that Plaintiff has plausibly pled a violation of the AMWA. Geddes,
559 F.2d, at 560.
3. AWA Claims
The AWA requires employers in Arizona to pay their employees’ wages in a timely
fashion. A.R.S. § 23-351(C). To bring an AWA claim, the plaintiff must state that their
employer failed to pay their wages within a specific timeframe. Perez, 2025 WL 4063609
at *3. An employee under the AWA is defined as “any person who performs services for
an employer under a contract of employment either made in this state or to be performed
wholly or partly within this state.” A.R.S. § 23-350(2). Plaintiff alleges that from October
3, 2022, to December 27, 2022, she was a resident of Maricopa County and was employed
by Defendants to run cable into buildings. (Doc. 1 at ¶ 11, Doc. 46 at 5). Plaintiff therefore
alleges she performed services under contract within the state of Arizona and was as a
result an employee under the AWA. A.R.S. § 23-250(2).
The term employer is more narrowly defined under the AWA than under the FLSA
or AMWA. Rosen v. Fasttrack Foods LLC, 2021 WL 2981590 (D. Ariz. July 15, 2021) at
*5. The AWA defines an employer as “any individual, partnership, association, joint stock
company, trust or corporation, the administrator or executor of the estate of a deceased
individual or the receiver, trustee or successor of any of such persons employing any
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person.” A.R.S. § 23-350(3). This does not include owners, officers, or directors of a
corporate employer in a case where the claim is for the employer’s wholesale failure to pay
wages. Rosen, 2021 WL 2981590 at *5; see also Channel v. Home Mortgage, Inc, 2005
WL 8160525 (D. Ariz. Sep. 21, 2005) at *14 (“The Court concludes that Arizona courts
would interpret the term “employer” in A.R.S. § 23-355 to include a corporation, but not
officers or agents of the corporation.”). Defendants Chad Lewis, Brandin Lewis, and
Jenniffer Lewis are alleged owners of Lewis Construction Company, LLC. (Doc. 1 at
¶¶15–18). Plaintiff alleges from October 3, 2022, to December 27, 2022 she was employed
by Lewis Construction Company, LLC. (Doc. 46 at 5). Lewis Construction Company,
LLC is a “corporation” which employs individuals and therefore is an “employer” under
the AWA. A.R.S. § 23-350(3). As a result, Defendants Chad Lewis, Brandin Lewis, and
Jenniffer Lewis, as alleged owners of Defendant Lewis Construction Company, LLC,
cannot be consider employers for purposes of the AWA claim. Rosen, 2021 WL 2981590
at *5. Plaintiff acknowledges this by only naming Defendant Lewis Construction
Company, LLC as her employer for purposes of the AWA claim. (Doc. 1 at 17 ¶ 97).
Plaintiff has therefore properly identified her employer under the AWA as Lewis
Construction Company, LLC.
Finally, Plaintiff alleges that she was not paid at all for her work between November
1, 2022 and December 27, 2022. (Doc. 1 at ¶¶ 49–51). The Court, accepting all the
Complaint’s allegations as true, finds that Plaintiff has plausibly pled a violation of the
AWA. A.R.S. § 23-355(A). Geddes, 559 F.2d, at 560.
4. Conclusion for second and third Eitel factors
When considering a default, the Court accepts all the Complaint’s allegations as
true. Geddes, 559 F.2d, at 560. Plaintiff has plausibly pled a violation of the FLSA,
AMWA, and AWA in the Complaint. As a result, the second and third factors weigh in
favor of a default judgment. Peralta v. Custom Image Pros LLC, 2023 WL 8455120 at *4
(D. Ariz. Dec. 6, 2023).
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C. The Amount of Money at Stake
The fourth Eitel factor considers the amount of money at stake. Eitel, 782 F.2d at
1471-72. “If the sum of money at stake is completely disproportionate or inappropriate,
default judgment is disfavored.” Twentieth Century Fox Film Corp. v. Streeter, 438 F.
Supp. 2d 1065, 1071 (D. Ariz. 2006). Plaintiff here seeks damages in reference to
Defendant’s violations of state and federal laws under the FLSA, AMWA, and AWA.
(Doc. 46 at 10–11). As analyzed below, the Court finds these damages are supported by
the FLSA, AMWA, and AWA. See infra Section 4. These are therefore proportionate and
appropriate to the conduct of Defendant and justify default judgment. Peralta, 2023 WL
8455120 at *4. The fourth Eitel factor thus weighs in favor of default judgment. Id.
D. Possible Dispute Concerning Material Facts
The fifth Eitel factor considers the possibility of a dispute concerning material facts.
Eitel, 782 F.2d at 1471. As stated above, “based on the entry of default, the Court accepts
all allegations in [Plaintiff’s] complaint as true (except for those relating to damages).”
Twentieth Century Fox, 437 F. Supp 2d, 1071. Defendants have had ample time and
opportunity to dispute Plaintiff’s claims and have failed to do so. (Doc. 46 at 2). As a
result, there are no disputed facts left in this case, and this factor weighs in favor of default
judgment. PepsiCo, Inc, 238 F. Supp. 2d at 1177.
E. Whether Default was Due to Excusable Neglect
The sixth Eitel factor considers whether default was due to excusable neglect, such
as ongoing settlement negotiations. Eitel, 782 F.2d at 1472. The Ninth Circuit has found
that if a defendant “has received actual or constructive notice of the filing of the action and
failed to answer,” their conduct is culpable. Franchise Holding II, LLC v. Huntington
Restaurants Grp., Inc., 375 F.3d 922, 926 (9th Cir. 2004) (internal quotes and citations
omitted). All Defendants in the current case either received notice or waived the right to
notice. (Doc. 46 at 2). All Defendants also provided an Answer to the Complaint (Doc. 9,
Doc. 21). Yet after their initial Answer was struck, they failed to defend their position
(Doc. 41). (Doc. 46 at 2). All Defendants had more than ample notice of the ongoing
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action. The Court finds that default was not due to excusable neglect. As a result, this
factor weighs in favor of a default judgment. PepsiCo, Inc. 238 F. Supp. 2d at 1177.
F. The Policy Favoring a Decision on the Merits
The final Eitel factor is the policy favoring a decision on the merits. “Cases should be
decided upon their merits whenever reasonably possible.” Eitel, 782 F.2d 1470, at 1472.
However, the existence of Rule 55(b) of the Federal Rules of Civil Procedure, which
authorizes default judgments, “indicates this preference, standing alone, is not dispositive.”
PepsiCo, Inc., 238 F. Supp. 2d at 1177. Defendants’ refusal to participate in litigation
further makes a decision on the merits unreasonable and impractical. Id. Therefore, despite
the strong policy interest favoring a decision on the merits, this factor weighs in favor of a
default judgment. Id.
III. Conclusion for Eitel Factors
After consideration of the Eitel factors, the Court finds it appropriate to grant default
judgment.
IV. Damages
Plaintiff brings claims under the FLSA, AMWA, and AWA. (Doc. 1 at ¶¶79-99).
Unlike other allegations during default judgment, damage allegations are not automatically
taken as true. TeleVideo Sys. Inc. v. Heidenthal, 826 F.2d 915, 917-918 (9th Cir. 1987).
The plaintiff in a default judgment can only recover those damages sought in the complaint.
Phillip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003).
A. FLSA Damages
According to Plaintiff, Defendants did not pay her for eight weeks. (Doc. 46 at 5).
During the workweeks of November 7, 2022 to December 26, 2022, Plaintiff alleges she
worked a total of 144.5 regular hours and 18.5 hours overtime. Id. at 5–6. Adding the
overtime hours to the regular work hours brings her total to 163 hours (144.5 unpaid normal
hours+18.5 unpaid overtime hours). She further alleges that during the workweeks of
October 17, 2022, and October 31, 2022, she worked 2.5 and 12.5 hours overtime
respectively and was not paid the premium rate. Id. Plaintiff therefore alleges a total of
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33.5 hours of unpaid overtime (18.5+12.5+2.5) and 163 hours of unpaid regular work
hours. With the federal minimum wage at $7.25 an hour and Plaintiff working 163 unpaid
hours, her total minimum wage lost comes to $1,181.75 ($7.25 x 163). She also states that
she worked 33.5 hours of overtime. Her unpaid overtime damages would be calculated as
follows: her regular rate was $25 an hour, therefore her overtime premium was $12.50 ($25
÷ 2). 29 U.S.C. § 207(a)(2) (employers must pay employees one and a half times their
regular rate for overtime). At $12.50 an hour for 33.5 hours, Plaintiff should have been
paid an overtime premium of $418.75 (33.5 x $12.5). Her total unpaid wages under the
FLSA come to $1,600.50 ($418.75 + $1,181.75). Then, as required by statute, her damages
should be doubled. 29 U.S.C. § 216(b) (“employers who violate the FLSA are liable for
the unpaid minimum wages and an equal amount as liquidated damages”). Plaintiff’s total
FLSA damages, therefore, come to $3,201 ($1,600.50 x 2).
B. AMWA Damages
The AMWA is a state minimum wage statute that requires Arizona employees to be
paid no less than $12.00 per hour in addition to yearly costly living adjustments, beginning
on or after January 1, 2021. A.R.S. § 23-363(A),(B). Plaintiff alleges she was not paid at
all during the workweeks of November 7, 2022, to December 26, 2022. (Doc. 46 at 1).
The Arizona minimum wage in 2022 was $12.80 an hour. A.R.S. § 23-363(B).
Accounting for the 163 hours she worked unpaid, the total owed to her under the AMWA
is $2,086.40 (163 x $12.80). Plaintiff also requests treble damages as required under
statute, which would bring the total damages to $6,259.20 (2,086.4 x 3). A.R.S. § 23-
364(G) (“Any employer who fails to pay the wages [. . .] required under this article shall
be required to pay the employee the balance of the wages [. . .] and an additional amount
equal to twice the underpaid wages or earned paid sick time.”).
C. AWA Damages
The AWA requires employers in Arizona to pay their wages in a timely fashion.
A.R.S. § 23-351. To bring an AWA claim, a plaintiff must state that her employer failed
to pay wages within a specified timeframe. The term employer is more narrowly defined
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under the AWA than under the FLSA or AMWA. Rosen, 2021 WL 2981590 at *5. An
employer is defined as “any individual, partnership, association, joint stock company, trust
or corporation, the administrator or executor of the estate of a deceased individual or the
receiver, trustee or successor of any of such persons employing any person.” A.R.S. § 23-
350(3). It excludes officers or agents of a corporation. Rosen, 2021 WL 2981590, at *5;
see also Channel v. Home Mortgage, Inc, 2005 WL 8160525, at *14 (D. Ariz. Sept. 21,
2005). Damages that result from AWA violations must be resolved, therefore, against the
corporate defendant instead of against individual officers. Here, Plaintiff brings an AWA
claim against Lewis Construction Company, LLC.
Unlike the FLSA and AMWA, trebling under the AWA is discretionary instead of
mandatory. See Patton v. Mohave County, 741 P.2d 301, 305 (Ariz. Ct. App. 1987)
(finding treble damages are discretionary). This discretion “merely reflects that such an
award may be inappropriate when a wage dispute involves a valid close question of law or
fact which should properly be decided by the courts or when failure to pay wages is due to
inadvertent mistake.” Swanson v. Image Bank, Inc., 43 P.3d 174, 184 (Ariz. Ct. App. 2002)
aff’d in part, vacated in part, 77 P.3d 439 (internal quotes and citations omitted). When
all reasonable inferences are resolved in Plaintiff’s favor, Plaintiff’s declarations indicate
that the withholding of wages was not the result of a good faith dispute. Therefore, the
Court finds treble damages appropriate.
Plaintiff alleges she was not paid at all for 163 hours during the workweeks of
November 7, 2022, to December 26, 2022. (Doc. 46 at 5). Her regular rate was $25.00
per hour, bringing her AWA claim to $4,075.00 (163 x $25.00). Plaintiff has requested
damages be trebled under A.R.S. § 23-355. As stated above, the Court finds trebling
damages appropriate in this instance. This brings the total damages from AWA violations
to $12,225.00 ($4,075.00 x 3).
D. Total Damages
Courts in the Arizona District have held that a plaintiff is only entitled to the
maximum damages under a single federal or state statute. Xalamihua v. GGC Legacy
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Janitorial Servs. LLC, 2023 WL 8891393, at *6 (D. Ariz. Dec. 26, 2023); see also
Valenzuela v. Esser, 2023 WL 2815548, at *7 (D. Ariz. Mar. 14, 2023) (finding available
legal opinion limits damages to maximum amount under either state or federal statute).
Plaintiff has acknowledged this in her motion. (See Doc. 46 at 10). Therefore, the Court
will only award the highest damages for the minimum wage hours and the overtime hours
separately.
To summarize the Court’s findings above, Plaintiff has shown that all Defendants
have violated the FLSA and AMWA, and that Defendant Lewis Construction Company,
LLC has violated the AWA. Aware that larger statutory awards engulf smaller ones,
Plaintiff asks for a total damages award of $13,062.50 ($12,225 in unpaid minimum
wages+$837.5 in unpaid overtime premium). (Doc. 46 at 10). Plaintiff asks that $7,096.70
(consisting of $6,259.00 in trebled unpaid minimum wage damages and $837.50 in doubled
unpaid overtime) be awarded against all Defendants, jointly and severally. (Doc. 46 at 10–
11). Plaintiff asks the remaining $5,965.90 in unpaid non-minimum wage damages
awarded against Defendant Lewis Construction Company.
V. Conclusion
The Court concludes that the damages requested by Plaintiff are provided for by the
AWA under A.R.S. § 23-264(G) and the FLSA under 29 U.S.C. § 216(b). The Court finds
that Plaintiff has adequately supported her allegations by the calculations in her Motion for
Default Judgment and the supporting affidavit. Plaintiff’s calculations are consistent with
the Court’s find that all Defendants can be held jointly and severally liable under the FLSA
and AMWA, but only Defendant Lewis Construction Company LLC can be held liable
under the AWA. The Court will grant damages in the amount of $7,096.70 against all
Defendants jointly and severally and an additional $5,965.90 against Defendant Lewis
Construction Company, LLC, only. The Court will also award post-judgment interest and
allow Plaintiff to seek an award of attorneys’ fees in accordance with Local Rule of Civil
Procedure 54.2.
/ / /
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Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Entry of Default Judgment (Doc. 46)
is GRANTED. The Clerk of Court is kindly directed to enter judgment as follows:
judgment in favor of Plaintiff in the amount of $5,965.90 against Defendant Lewis
Construction Company LLC; and judgment in favor of Plaintiff in the amount of $7,096.70
against Defendants Lewis Construction Company LLC, Brandin Lewis, Chad Lewis, and
Jenniffer Lewis, jointly and severally as set forth in this Order. These amounts shall be
subject to post-judgment interest at the applicable federal rate pursuant to 28 U.S.C. §196.
IT IS FURTHER ORDERED that Plaintiff may file a motion for costs and
attorneys’ fees in accordance with Local Rule of Civil Procedure 54.2 within fourteen days
of the entry of this Order.
IT IS FINALLY ORDERED that this case shall be closed.
Dated this 9th day of February, 2026.
Honorable Diane J. Humetewa
United States District Judge
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