Perez v. Evolet's Painting Service LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Luis Enrique Ramos Perez,
Plaintiff,
v.
Evolet’s Painting Services LLC, et al.,
Defendants.
No. CV-25-01886-PHX-ASB
REPORT AND RECOMMENDATION
TO HON. STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT
JUDGE:
Before the Court is Plaintiff’s Motion for Default Judgment Against Defendants
(Doc. 12). No Response was filed to the Motion, and the time for same has passed. For
the reasons below, undersigned recommends the Motion be granted and default judgment
be entered as to all Defendants. Undersigned provides this Report and Recommendation
to the District Judge pursuant to General Order 21-25 because not all parties to this matter
have consented to the jurisdiction of the undersigned Magistrate Judge.
A. Procedural History
On May 31, 2025, Plaintiff filed a Complaint against Evolet’s Painting Services
LLC, and Graciela Gabino Ramirez and Arturo Perez Guzman, a married couple. (Doc.
1.) All defendants (collectively, “Defendants”) were served. (See Docs. 7-9.) Plaintiff
filed an Application for Entry of Default as to Defendants. (Doc. 10.) After the Clerk of
Court entered default as to Defendants (Doc. 11), Plaintiff’s Motion for Default Judgment
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against Defendants was filed (Doc. 12). No response followed. Thus, the Motion for
Default Judgment is now ripe as to all Defendants in this matter.
B. Legal Standard – Default Judgment
Once default has been entered against a party, the Court has discretion to enter
default judgment against that party. See Fed. R. Civ. P. 55(b)(2); Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980). “When entry of judgment is sought against a party who
has failed to plead or otherwise defend, a district court has an affirmative duty to look into
its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712
(9th Cir. 1999).
After the Court has been satisfied that it has personal and subject matter jurisdiction,
the Court must consider the factors enumerated by the Ninth Circuit in Eitel v. McCool,
782 F.2d 1470, 1471-72 (9th Cir. 1986) when deciding whether to grant default judgment.
Those factors are: “(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.” Id. Upon default, and thus
when applying the Eitel factors, “the factual allegations of the complaint, except those
relating to the amount of damages, will be taken as true.” Geddes v. United Fin. Grp., 559
F.2d 557, 560 (9th Cir. 1977). In its default judgment analysis, the Court “is not required
to make detailed findings of fact.” Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th
Cir. 2002).
C. Analysis – Default Judgment
The Court has considered the record of these proceedings, including Plaintiff’s
Declaration in Support of Motion for Entry of Default Judgment (Doc. 12-1). The Court
finds that Plaintiff has complied with the requirements of Rule 55 of the Federal Rules of
Civil Procedure. The Court therefore considers jurisdiction.
//
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1. Jurisdiction
Subject matter jurisdiction is first present because Count One of the Complaint is
brought under 29 U.S.C. §§ 206-07 (the Fair Labor Standards Act or “FLSA”). (Doc. 1 at
10-11); see 28 U.S.C. § 1331. The remaining counts (Counts Two and Three) are brought
under Arizona law, specifically the Arizona Minimum Wage Act (“AMWA”, A.R.S. §
363) and the Arizona Wage Act (“AWA”, A.R.S. § 23-350), respectively. (Doc. 1 at 11-
13.) Under 28 U.S.C. § 1367(a), this Court “shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States
Constitution.” Undersigned concludes the state law claims form part of the same case or
controversy as Plaintiff’s federal law claims for purposes of § 1367(a), because all of the
claims “derive from a common nucleus of operative fact and are such that a plaintiff would
ordinarily be expected to try them in one judicial proceeding.” Trustees of the Constr.
Indus. & Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333
F.3d 923, 925 (9th Cir. 2003) (citations and internal quotation marks omitted).
Undersigned does not find that any exceptions under 28 U.S.C. § 1367(c) apply, and
supplemental jurisdiction over the state law claims is present. Personal jurisdiction exists,
as Defendants are either organized in, or are residents of, this District, and the record
establishes service was effectuated upon them.
Because jurisdiction is proper, the Court next considers the Eitel factors.
2. Eitel factors
In deciding whether to grant default judgment, the Court must weigh “(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, 782 F.2d at 1471-72.
//
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a. Factor 1
The Court finds the first factor weighs in Plaintiff’s favor. Plaintiff has faithfully
prosecuted this case since its inception. Defendants have not participated in this matter at
all. Plaintiff has no alternative means to resolve the claims in his Complaint against
Defendants. Thus, there is a strong possibility of prejudice to Plaintiff if default judgment
is not entered. See Ramirez v. Unique Transitional Homes Staffing LLC, No. CV-23-01882-
PHX-DGC, 2024 WL 1740020, at *2 (D. Ariz. Apr. 23, 2024) (finding the same in an
action for unpaid wages because the plaintiff would be without recourse or redress if
default judgment were denied).
b. Factors 2 and 3
Given the interplay of the second and third factors, the Court considers them
together. See Eitel, 782 F.2d at 1472. Here, both factors weigh in favor of granting default
judgment. The Court finds the Complaint contained great detail regarding Defendants’
alleged violations of federal and state wage statutes. (See Doc. 1.) The allegations are
taken as true. Geddes, 559 F.2d at 560.
First, the Court considers the second and third factors as they pertain to the federal
wage statute. Plaintiff alleges a minimum wage violation under the FLSA. (Doc. 1 at 10-
11.) “The FLSA requires employers to pay their employees a minimum hourly wage and
additional overtime wages for any time spent working in excess of a forty-hour workweek
(not less than one and a half times the hourly wage).” Ramirez, 2024 WL 1740020, at *2
(citing 29 U.S.C. §§ 206(a), 207(a)). “To establish a minimum wage or overtime violation
of the FLSA, Plaintiff must establish three elements: (1) []he was an employee of
Defendants, (2) []he was covered under the FLSA, and (3) Defendants failed to pay [him]
minimum wage or overtime wages.” Smith v. Nov. Bar N Grill LLC, 441 F. Supp. 3d 830,
834 (D. Ariz. 2020). The FLSA defines an “employee” as “any individual employed by an
employer” and an “employer” as “any person acting directly or indirectly in the interest of
an employer in relation to an employee[.]” 29 U.S.C. § 203(d), (e)(1). “An individual can
be subject to liability under the FLSA as an employer if they ‘exercise control over the
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nature and structure of the employment relationship, or economic control over the
relationship.’” Avila v. JBL Cleaning Servs. LLC, No. CV-23-00398-PHX-DJH, 2024 WL
863710, at *3 (D. Ariz. Feb. 29, 2024) (quoting Boucher v. Shaw, 572 F.3d 1087, 1091
(9th Cir. 2009)). In his Complaint, Plaintiff alleges he was an employee of Defendants at
all relevant times and Defendants exercised control over his work and wages. (Doc. 1, ¶¶
11-23.) Plaintiff further alleges he worked for Defendants for a single 12-hour shift in a
workweek, on May 16, 2025, as a “paint prepper, performing non-exempt, manual labor
related to preparing paint and painting.” (Id. at ¶¶ 33-40.) Plaintiff alleges that
“Defendants classified him as an independent contractor,” but Plaintiff was in fact
Defendants’ employee for that one shift of work. (See id.) Taking those factual allegations
as true, Plaintiff has established he was an employee of Defendants, and that Defendants
were employers under the FLSA. “To bring an FLSA claim for unpaid minimum wages, a
plaintiff must ‘allege facts showing that there was a given week in which he was entitled
to but denied minimum wages.’” Avila, 2024 WL 863710, at *4 (quoting Landers v.
Quality Commc’ns, Inc., 771 F.3d 638, 645 (9th Cir. 2014)). In his Complaint, Plaintiff
alleges he was not paid for his single shift in his single workweek with Defendants. (Doc.
1 at ¶¶ 44-50.) Those allegations are further accepted as true, and Plaintiff has stated a
plausible minimum wage claim under the FLSA.
The Court next turns to the second and third Eitel factors as they relate to Plaintiff’s
claim under the AMWA. (See Doc. 1 at 11-12.) “The AMWA establishes the minimum
wage an employer must pay an employee in Arizona.” Avila, 2024 WL 863710, at *4;
A.R.S. § 23-363. “Like the FLSA, the AMWA defines an ‘employee’ as ‘any person who
is or was employed by an employer.’” Id. § 23-362(A). The AMWA goes on to define
an “employer” as “any corporation proprietorship, partnership, joint venture, limited
liability company, trust, association, political subdivision of the state, [and] individual or
other entity acting directly or indirectly in the interest of an employer in relation to an
employee.” A.R.S. § 23-362(B). Here, Plaintiff has sufficiently alleged that Defendants
(which are either limited liability companies or individuals) are employers under the
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AMWA; that Plaintiff was their employee; and that Plaintiff was not paid for the 12-hour
shift of his workweek of employment. (See Doc. 1 at 3-9.) Thus, Plaintiff has stated a
colorable claim under the AMWA.
Finally as to these two Eitel factors, the Court considers Plaintiff’s claim under the
AWA. That statute mandates that “[e]ach employer, on each of the regular paydays, shall
pay to the employees all wages due to the employees up to that date[.]” A.R.S. § 23-
351(C). An “employee,” as defined by the AWA, is very similar to the FLSA and AMWA.
See A.R.S. § 23-350(2) (defining “employee” 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” Arizona). “However, the AWA limits the term ‘employer’ to
include ‘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.’” Avila, 2024 WL 863710, at
*4 (quoting A.R.S. § 23-350(3)). That is, “[u]nlike the FLSA and the AMWA, the AWA
‘does not ... authorize individual liability against the owners, officers, and directors of a
corporate employer in a case where the claim is for the employer's wholesale failure to pay
wages.’” Id. (quoting Rosen v. Fasttrak Foods LLC, No. CV-19-05292-PHX-DWL, 2021
WL 2981590, at *5 (D. Ariz. Jul. 15, 2021)). Indeed, Plaintiff’s Complaint contains an
AWA claim against only the entity, Defendant Evolet’s Painting Services LLC,1 and not
the individually-named defendants. (Doc. 1 at 12-13.) The facts alleged by Plaintiff
establish that he was employed by Defendant Evolet’s Painting Services LLC and that he
was not paid for his single shift in the single workweek he was employed by that entity, in
violation of the AWA. (See id. at 3-9.)
Accordingly, after taking the allegations in the Complaint as true, undersigned
concludes Plaintiff has stated claims upon which he may recover under both Fair Labor
1 In one of the paragraphs of this Count in the Complaint, Plaintiff alleges “Defendants
Power Connections LLC and Power Connections Consulting LLC sought to delay payment
without reasonable justification and to defraud Plaintiff of wages earned.” (Doc. 1 at ¶ 72.)
There are no such defendants in this case. The remainder of the paragraphs from this Count
contain Evolet’s Painting Services LLC only. (Id. at ¶¶ 69-71, 73.)
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Standards Act (29 U.S.C. § 201, et seq.), the AMWA (A.R.S. § 23-363), and the AWA
(A.R.S. § 23-350 et seq.).
c. Factor 4
Under the fourth factor, the Court considers the amount of money at stake in relation
to the seriousness of Defendants’ conduct. See PepsiCo., Inc. v. Cal. Sec. Cans, 238
F.Supp.2d 1172, 1176 (C.D. Cal. 2002). In the case at bar, Plaintiff seeks total damages in
the amount of $529.20 against Evolet’s Painting Services LLC, and Graciela Gabino
Ramirez and Arturo Perez Guzman, jointly and severally.2 (Doc. 12 at 8-9, 11; Doc. 12-1
at 3-4.) He also seeks post-judgment interest and leave to file a motion for attorney’s fees
and costs. (Doc. 12 at 11.) Given the low number of hours Plaintiff has alleged that he
worked without compensation, the Court finds the smaller amount of sought damages to
be reasonable. This factor weighs in favor of default judgment.
d. Factor 5
The fifth factor requires the Court to consider the possibility of dispute concerning
the material facts. This factor favors default judgment, as Defendants have failed to
participate in this matter since being served. Since that time, they have made no effort to
meaningfully challenge Plaintiff’s Complaint or engage in the discovery process, despite
Plaintiff’s efforts to communicate with them.
e. Factor 6
Sixth, the Court considers whether the default was due to excusable neglect. The
record is devoid of any indication that Defendants’ failure to participate in this case or
otherwise defend against the Complaint since May 2025 is the result of excusable neglect.
Defendants were duly served with this lawsuit. (See Docs. 7-9.) Thus, they have been
made aware of the pendency of this matter and their attendant obligations. No evidence to
indicate Defendants have excusably neglected this matter is before the Court. Thus, the
factor weighs in favor of default judgment.
2 The Court considers infra the sufficiency of Plaintiff’s evidence regarding sought
damages.
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f. Factor 7
Finally, the Court is mindful of “the general rule that default judgments are
ordinarily disfavored,” and that matters “should be decided upon their merits whenever
reasonably possible.” Eitel, 782 F.2d at 1472. However, Defendants have completely
failed to defend this lawsuit, despite their knowledge that it is ongoing. Defendants’
conduct has rendered impossible the decision of this case on its merits.
After considering and weighing the Eitel factors, undersigned finds default
judgment is appropriate and recommends to the District Judge that default judgment be
entered against Defendants.
3. Damages
When considering the amount of damages, the Court does not take the factual
allegations contained in the Complaint as true. See Geddes, 559 F.2d at 560; TeleVideo
Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Rather, Plaintiff is required to
prove up the damages he sought in his Complaint. Philip Morris, U.S.A. v. Castworld
Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). Further, “a default judgment must not
differ in kind from, or exceed in amount, what is demanded in” Plaintiff’s Complaint. Fed.
R. Civ. P. 54(c). “In determining damages, a court can rely on the declarations submitted
by the plaintiff or order a full evidentiary hearing.” Philip Morris, 219 F.R.D. at 498 (citing
Fed. R. Civ. P. 55(b)(2)).
Undersigned has carefully reviewed the Complaint (Doc. 1) and Plaintiff’s
Declaration (Doc. 12-1). Although the Complaint did not include a specific dollar amount
of sought damages, the Complaint provided sufficient detail regarding the relief sought as
to each of the claims pled. In his Complaint, Plaintiff pled the federal minimum wage
claim, the AMWA claim, and the AWA claim. (See Doc. 1 at 10-13.) In support of those
claims, Plaintiff’s Complaint described the single shift Plaintiff worked, alleged that
Plaintiff was not paid for that work, and contained Plaintiff’s approximate daily wage. (See
id. at 6-9.) Plaintiff’s Declaration included a detailed calculation of wages that aligns with
the allegations contained in her Complaint. (See Doc. 12-1 at 3-4.)
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First, Plaintiff reasonably estimates he is owed $87.00 in unpaid federal minimum
wages (12 hours x federal minimum wage rate $7.25 per hour) for his single shift of
performed work. (Doc. 12-1 at ¶ 10.) “When an employer is found liable under the FLSA
for failure to pay minimum and overtime wages, the employee is entitled to ‘unpaid
minimum wages, [ ] unpaid overtime compensation ... and in an additional equal amount
as liquidated damages.’” Avila, 2024 WL 863710, at *6 (citing 29 U.S.C. § 216(b) and
adding emphasis). “Double damages are the norm, and single damages are the exception.”
Id., citing Alvarez v. IBP, Inc., 339 F.3d 894, 910 (9th Cir. 2003)). Thus, Plaintiff’s unpaid
federal minimum wages are doubled to $174.00. And “[w]hen a defendant is found liable
under the AMWA for failure to pay minimum wages, the plaintiff is entitled to treble
damages – the un[d]erpaid wages, including interest thereon, ‘and an additional amount
equal to twice the underpaid wages.’” Ramirez, 2024 WL 1740020, at *5 (citing A.R.S. §
23-364(G)). Here, Plaintiff worked 12 hours, and the Arizona hourly minimum wage rate
for that time period was $14.70; thus, the Arizona minimum wages owed to Plaintiff are
$176.40. (Doc. 12-1 at ¶ 10.) Therefore, under the AMWA, Plaintiff’s Arizona minimum
wage damages are trebled to $529.20.
Because double recovery is prohibited, see Avila, 2024 WL 863710, at *6 (citing
Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 333 (1980)), undersigned agrees
with Plaintiff that a larger, trebled Arizona award “engulfs” the federal minimum wage
damages award. (See Doc. 12-1, ¶ 15.) Therefore, as to minimum wage statutory damages,
Plaintiff has established an award of $529.20 against all Defendants.
Plaintiff also brought suit against Evolet’s Painting Services LLC under the AWA,
which allows for trebled damages of Plaintiff’s unpaid wages (not only unpaid minimum
wages) under A.R.S. § 23-355. (See Doc. 1 at 12-13.) Specifically, A.R.S. § 23-355
provides that “the employee may recover in a civil action against an employer or former
employer an amount that is treble the amount of the unpaid wages.” Plaintiff reasonably
estimates that his unpaid wages for his single shift of work at his regular rate of pay
($160.00 per day), were $160.00. (Doc. 12-1, ¶ 11.) Plaintiff contends the Court “must”
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treble those damages. (Doc. 12 at 9.) The Court disagrees. “The treble damages provision
of A.R.S. § 23-355 is discretionary.” Alvarez v. Talaveras Renovations LLC, No. CV-23-
02654-PHX-DWL, 2024 WL 663431, at *3 (D. Ariz. Feb. 16, 2024) (citing Swanson v.
Image Bank, Inc., 77 P.3d 439, 443 (Ariz. 2003) (“Under the plain language of the statute,
the award of treble damages for the bad-faith withholding of wages is discretionary with
the court.”). Here, Plaintiff alleged in his Complaint that Defendant Evolet’s Painting
Services LLC refused to pay him due to the misconduct of Plaintiff’s co-worker. (Doc. 1
at ¶¶ 40-44.) As discussed supra, though, the Court cannot take the factual allegations
contained in the Complaint as true. See Geddes, 559 F.2d at 560. Without those
allegations, the Court is left with Plaintiff’s declaration in support of the instant Motion for
Default Judgment (Doc. 12-1). Plaintiff’s declaration contains no discussion of whether
the wages were withheld in bad faith. (See id.) “Because Plaintiff’s declaration provides
no indication why Defendants withheld his wages, it does not support the conclusion that
the withholding was done ‘unreasonably and in bad faith.’” Alvarez, 2024 WL 663431, at
*3 (quoting Swanson v. Image Bank, Inc., 43 P.3d 174, 183 (Ariz. Ct. App. 2002)).
Because Plaintiff has failed to demonstrate that his wages were withheld unreasonably and
in bad faith, the Court will recommend the District Judge decline to award treble damages
under the AWA. As a practical matter, this recommendation will have no effect because
the AWA damages (even if trebled to $480.00, as Plaintiff requests) remain less than the
trebled Arizona minimum wage damages of $529.20. Without discretionary trebling, the
unpaid wage damages Plaintiff may recover pursuant to A.R.S. § 23-355 against Evolet’s
Painting Services LLC total $160.00. That amount is engulfed by the $529.20 AMWA
award.
Therefore, the total amount of statutory damages that undersigned will recommend
be awarded against Defendants Evolet’s Painting Services LLC and Graciela Gabino
Ramirez and Arturo Perez Guzman, jointly and severally, is $529.20.
Finally, Plaintiff requests leave to file a motion for attorney’s fees (Doc. 12 at 11).
Because good cause appears under the applicable federal and state statutes, undersigned
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will recommend that the District Judge order such a motion be filed within 14 days of the
District Judge’s Order. Finally, Plaintiff requests post-judgment interest be awarded. (Id.)
Post-judgment interest may be added to the award pursuant to 28 U.S.C. § 1961(a); thus,
undersigned will recommend that post-judgment interest be awarded as well.
D. Conclusion
For the foregoing reasons,
IT IS THEREFORE RECOMMENDED:
1. That Plaintiff’s Motion for Default Judgment Against Defendants Evolet’s
Painting Services LLC and Graciela Gabino Ramirez and Arturo Perez Guzman,
a married couple (Doc. 12) be granted, specifically:
a. Plaintiff is awarded statutory damages in the amount of $529.20 against
Defendants Evolet’s Painting Services LLC and Graciela Gabino Ramirez
and Arturo Perez Guzman, jointly and severally, without trebling of AWA
damages;
b. Post-judgment interest on those judgments be assessed at the statutory rate
pursuant to 28 U.S.C. § 1961.
2. That the Court order any motion for attorney’s fees be filed no later than 14 days
from the date the District Judge’s Order is filed. In addition, given Plaintiff’s
counsel’s history of requesting fees for disallowed tasks in other matters before
this Court3, undersigned recommends that the District Judge order that said
Motion shall not contain any requests for fees that are barred under controlling
case law, such as clerical tasks, and direct that all billing entries be specific as to
what precise tasks were performed.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
3 This history was discussed in Villa v. Express Truss & Framing Sys. LLC, No. CV 24-
01890-PHX-ASB, Doc. 33 at 4-6. The District Judge accepted the recommendation
contained therein and reminded Plaintiff’s counsel of their Rule 11 obligations. Id., Doc.
24 at 2.
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parties shall have 14 days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a
response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 12th day of December, 2025.
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