Conejo et al v. Malwitz

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 24-cv-00232-CNS-NRN
ADRIAN CONEJO, CHRISTOPHER ASHMORE, JASON MACK, MIGUEL ACOSTA,
JEFFREY 	MARTIN, 	DAVID 	KELSCH-HAGHIRI, 	REBECCA 	HAMPTON, 	RACHEL
CALDWELL, ALFONSO BARAJAS, ANGEL LOUGH, COLE TIMIAN, MARQUIVAS
CRAWFORD, CODY PITTSER, AND DANIAL GARZA,
in their individual capacities and on behalf of others similarly situated
Plaintiffs,
v.
NICHOLAS (“Nic”), an individual
Defendant.
ORDER
Before the Court is United States Magistrate Judge N. Reid Neureiter’s Report and
Recommendation to grant in part and deny in part Plaintiffs’ Motion for Default Judgment.
See ECF No. 45 (Motion for Default Judgment); ECF No. 70 (Recommendation). Plaintiffs
raised a limited objection to the Recommendation regarding the denial of damages on
Plaintiffs’ conversion/theft of services claim (the theft or theft of services claim). See ECF
No. 71 (Plaintiffs’ Limited Objection to Report and Recommendation). For the reasons set
forth 	below, 	the 	Court 	AFFIRMS 	and 	ADOPTS 	Magistrate 	Judge 	Neureiter’s
Recommendation, ECF No. 70, to the extent the Recommendation recommends granting
the default judgment motion as to Plaintiffs’ “FLSA and state law wage claims,” id. at 14.
The Court REVERSES the Recommendation to the extent it recommends denying the
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default judgment motion as to Plaintiffs’ request for damages based on their theft claim.
See id. Thus, the Court GRANTS Plaintiffs’ request to recover additional damages for the
theft of services claim. See, e.g., ECF No. 45 at 11; ECF No. 71 at 1.
I. BACKGROUND1
Plaintiffs worked for Defendant’s metal fabrication and construction company,
Steel Huggers LLC. See ECF No. 38 ¶ 1. Beginning in late 2023, Plaintiffs experienced
problems receiving their pay. Id. ¶ 29. Plaintiffs’ paychecks were late or would bounce,
and as time progressed, Plaintiffs stopped receiving paychecks at all. Id. 	Defendant is
the sole owner of Steel Huggers and an additional “employer.” Id. ¶ 1. Defendant was the
individual who made financial decisions about the company, including which creditors to
pay, how to manage cashflow, and payments made to employees. Id. ¶ 8. Steel Huggers
LLC filed for bankruptcy on November 15, 2023; however, Defendant has not. Id. ¶ 1;
ECF No. 45 at 4. During the bankruptcy proceedings, Defendant admitted to owing over
$150,000, including taxes, spread among 77 employees for unpaid wages. In re: Steel
Huggers, LLC, Case No. 23-15295 (Bankr. D. Colo. 2023), ECF No. 14 at 3.
On January 25, 2024, Plaintiffs filed this action against Defendant for the recovery
of unpaid/underpaid wages and other damages under the Fair Labor Standards Act
(FLSA), 29 U.S.C. § 201, the Colorado Wage Claims Act (CWCA), C.R.S. § 8-4-101, and
the Colorado Minimum Wage Act (CMWA), C.R.S. § 8-6-101, as implemented by the
Colorado Overtime and Minimum Pay Standards Orders (COMPS). See generally ECF
1 The background facts in this Order are drawn from Plaintiff’s Second Amended Complaint. ECF No. 38.
Due to the Clerk of Court’s second entry of default against Defendant, see ECF No. 41, the Complaint’s
allegations are deemed admitted. See Olcott v. Del. Flood Co., 327 F.3d 1115, 1125 (10th Cir. 2003).
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No. 1. Plaintiffs also brought an additional state law claim for theft under C.R.S. § 18-4-
401. Id. Defendant was served with the initial summons on March 7, 2024. ECF No. 9. A
Clerk’s Entry of Default was entered on April 12, 2024, against Defendant after he failed
to respond to the complaint. ECF No. 21. On November 19, 2024, Plaintiffs filed a Second
Amended Complaint (SAC). ECF No. 38. Plaintiffs asserted FLSA, CWCA, and theft of
services claims in the SAC. See generally id. On December 8, 2024, a process server
personally served the SAC on Defendant by handing it to his wife. ECF No. 39. Despite
being served, Defendant never entered an appearance in this case. On January 7, 2025,
a Second Clerk’s Default was entered against Defendant. ECF No. 41.
On March 24, 2025, Plaintiffs filed the instant motion requesting that the Court
issue an order entering a default judgment against Defendant requesting damages,
attorney fees, and an award of both prejudgment and post judgment interest. See ECF
No. 45 at 9–15. The Court referred the motion to Magistrate Judge Neureiter, ECF No.
46, who heard oral argument on September 11, 2025. ECF No. 67. On October 24, 2025,
Magistrate Judge Neureiter issued his Recommendation that Plaintiff’s motion for default
judgment be granted as to Plaintiffs’ FLSA and state law claims and be denied to the
extent that Plaintiffs seek damages for theft and prejudgment interest for the thirteen
named plaintiffs. ECF No. 70 at 14. Magistrate Judge Neureiter concluded that permitting
damages for the theft claim and prejudgment interest would be duplicative of the statutory
penalties already imposed under the CWCA and the FLSA. Id. at 9, 12.
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II. LEGAL STANDARD AND STANDARD OF REVIEW
A. Default Judgment
A court may enter default judgment against a party that has failed to plead or
otherwise defend an action brought against it. Fed. R. Civ. P. 55(b)(2). The decision to
enter default judgment is “committed to the district court’s sound discretion.” Olcott, 327
F.3d at 1124 (citation omitted). “Strong policies favor resolution of disputes on their
merits,” and default judgment should be “available only when the adversary process has
been halted because of an essentially unresponsive party.” In re Rains, 946 F.2d 731,
732 (10th Cir. 1991) (citation omitted).
When facing a motion for default judgment, a court must engage in a two-step
inquiry. First, the Court must evaluate and establish its jurisdiction. See, e.g., Bixler v.
Foster, 596 F.3d 751, 761 (10th Cir. 2010). To enter default judgment, a court must have
both subject-matter jurisdiction over the action and personal jurisdiction over each
defaulting defendant. Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986).
Second, the Court must evaluate whether the plaintiff’s pleadings support a judgment on
the claims alleged. Tripodi v. Welch, 810 F.3d 761, 765 (10th Cir. 2016). The complaint
“must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson v. Gonzales,
534 F.3d 1282, 1286 (10th Cir. 2008) (citation omitted). When ruling on a motion for
default judgment, courts accept all well-pleaded factual allegations in the complaint as
true. Olcott, 372 F.3d at 1125. Undisputed facts within the affidavits or exhibits are also
deemed true. Id. at 1124.
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Allegations regarding the amount of damages, however, are deemed true only to
the extent they are “capable of mathematical calculation.” Marcus Food Co. v. Dipanfilo,
671 F.3d 1159, 1172 (10th Cir. 2011); see also Hunt v. Inter-Globe Energy, Inc., 770 F.2d
145, 148 (10th Cir. 1985) (“[A] court may enter a default judgment without a hearing only
if the amount claimed is a liquidated sum or one capable of mathematical calculation.”).
Where the amount claimed is not “a liquidated sum or one capable of mathematical
calculation,” a court is required to hold an evidentiary hearing to determine the amount of
damages. Venable v. Haislip, 621 F.2d 297, 300 (10th Cir. 1983); see Marcus Food, 671
F3d at 1171–72 (determining that the damages asserted in the complaint were sufficiently
calculable so as not to require an evidentiary hearing).
B. Magistrate Judge Objections
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly objected
to.” An objection to a recommendation is properly made if it is both timely and specific.
United States v. 2121 East 30th St., 73 F.3d 1057, 1059–60 (10th Cir. 1996). An objection
is sufficiently specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” Id. at 1059. In conducting
its review, “[t]he district judge may accept, reject, or modify the [recommendation]; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3).
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III. ANALYSIS
Having considered the entire case file and relevant legal authority, the Court
affirms and adopts in part United States Magistrate Judge Neureiter’s Report and
Recommendation on Plaintiffs’ Motion for Default Judgment and grants Plaintiff’s Motion
for Default Judgment. The Court affirms and adopts the Recommendation to the extent it
recommends granting Plaintiffs’ default judgment motion as to Plaintiffs’ FLSA and state
law 	wage 	claims. 	But 	the 	Court 	reverses 	the 	Recommendation 	to 	the 	extent 	it
recommends denying the default judgment motion as to Plaintiffs’ request for damages
based on their theft claim.
A. Jurisdiction
As noted above, to enter default judgment, a court must have both subject matter
jurisdiction over the action and personal jurisdiction over each defaulting defendant. See
Williams, 802 F.2d at 1203. The Court considers these jurisdictional prerequisites below,
concluding that both are satisfied.
1. Subject Matter Jurisdiction
Plaintiffs assert, and the magistrate judge found, that the Court has subject matter
jurisdiction over this action pursuant to 28 U.S.C. § 1331. ECF No. 45 at 4. 	The Court
agrees. A court has subject matter jurisdiction over an action when there is either a federal
question at issue or diversity between the parties. See 28 U.S.C §§ 1331 and 1332. 28
U.S.C. § 1331 provides, in pertinent part, that “district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United States.”
Here, Plaintiff brings a claim under the Fair Labor Standards Act, 29 U.S.C § 201 et. seq.
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ECF No. 45 at 4; ECF No. 38 at 9. Accordingly, Plaintiff’s claim arises under federal law,
and thus subject matter jurisdiction exists under 28 U.S.C. § 1331. Additionally, the Court
has supplemental jurisdiction over Plaintiffs’ state law claims under 28 U.S.C. § 1367.
2. 	Personal Jurisdiction
Plaintiffs assert, and the magistrate judge found, that the Court has personal
jurisdiction over Defendant. ECF No. 45 at 4. A plaintiff bears the burden of establishing
personal jurisdiction over the defendant. See Rambo v. Am. S. Ins. Co., 839 F.2d 1415,
1417 (10th Cir. 1988). However, “the plaintiff need only make a prima facie showing [of
personal jurisdiction] if the motion [for default judgment] is decided only on the basis of
the parties’ affidavits and other written materials.” Dennis Garberg & Assocs., Inc. v.
Pack-Tech Int’l Corp., 115 F.3d 767, 773 (10th Cir. 1997). Accepting the well-pleaded
facts in the SAC as true, the Court finds that it has general and personal jurisdiction over
Defendant, who is domiciled in Colorado. See, e.g., Access 4 All Inc. v. W 4 K, Inc., No.
22–cv–01236–RM–STV, 2023 WL 7003409, at *1 (D. Colo. Oct. 24, 2023). In addition,
Plaintiffs properly served Defendant via personal service, and Defendant’s company,
Steel Huggers, LLC, is based in Colorado. ECF No. 38 ¶ 4; See Jenkins v. City of Topeka,
136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of service is a precondition to suit.”);
Okla. Radio Assocs v. Fed Deposit Ins. Co., 969 F.2d 940, 943 (10th Cir. 1992) (“Without
proper service, the Court lacks personal jurisdiction over a defendant.”).
B. Default Judgment
Having established jurisdiction over the matter and Defendant, the Court must next
decide “whether the unchallenged facts constitute a legitimate cause of action,” such that
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judgment should be entered. Bixler, 596 F.3d at 762 (citations omitted). If judgment by
default enters, the Court must also ascertain the amount of damages to which Plaintiffs
are entitled. See Eighth District Electrical Pension Fund v. Teter Industries, Inc., No. 1:22–
cv–02521–CNS, 2023 WL 3819339, at *5 (D Colo. June 5, 2023). Here, Plaintiffs’
objection 	to 	Magistrate 	Judge 	Neureiter’s 	Recommendation 	is 	limited 	in 	scope.
Specifically, Plaintiffs challenge the denial of damages for Plaintiffs’ theft of services
claim. According to their Limited Objection, Plaintiffs “do not contend that they should be
entitled to receive double recovery . . . they contend that the actions constituting theft are
different from the standards set forth in the Colorado Wage Acts and FLSA for their
respective damages.” ECF No. 71 at 2. Plaintiffs ask the Court to consider FLSA
liquidated damages, CWCA statutory damages, and theft damages as separate and
distinct remedies that each serve different purposes. Id.
The Court begins its analysis by first discussing the relevant damages imposed by
the FLSA, the CWCA, and Colorado law for theft. The Court will then address the issue
of whether allowing a plaintiff to recover treble damages under both C.R.S. § 8-4-109 and
C.R.S. § 8-4-114(2) constitutes a double recovery. As explained further below, it does not
under the facts of this case.
1. 	FLSA Liquidated Damages
Under the FLSA, “Any employer who violates the provisions of . . . section 207 . .
. shall be liable to the employee or employees affected in the amount of their . . . unpaid
overtime compensation . . . and in an additional equal amount as liquidated damages.”
29 U.S.C. § 216(b). Plaintiffs contend that FLSA liquidated damages are compensatory.
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ECF No. 71 at 3. The Court agrees that the purpose of liquidated damages under the
FLSA is to make a plaintiff whole, rather than penalize an employer for its wrongdoing.
See Gray v. Knight Security and Patrol, Inc., 16–cv–03086–KLM, 2019 WL 10896966, at
*3 (D. Colo. Feb. 15, 2019) (“Liquidated damages awarded under the FLSA are
compensatory, rather than punitive.” (citation modified)). Further, the Tenth Circuit has
previously established that “[t]he purpose for the award of liquidated damages is the
reality that the retention of a workman’s pay may well result in damages too obscure and
difficult of proof for estimate other than by liquidated damages.” Renfro v. City of Emporia,
Kan., 948 F.2d 1529, 1540 (10th Cir. 1991); See also Jordan v. U.S. Postal Serv., 379
F.3d 1196, 1202 (10th Cir. 2004) (holding that liquidated damages under FLSA “are not
a penalty exacted by the law, but rather compensation to the employee occasioned by
the delay in receiving wages due caused by the employer’s violation of the FLSA.”
(citation modified)).
Accordingly, the Court agrees with Plaintiffs that FLSA liquidated damages are
compensatory, and that they are entitled to such damages. The Court likewise agrees
with the Recommendation that Plaintiffs are entitled to FLSA liquidated damages in the
amount of unpaid/underpaid minimum wages calculated under the FLSA. See ECF No.
70 at 11.
2. 	CWCA Statutory Penalties
Under the CWCA, if an employer fails or refuses to pay wages, the employee may
make a written demand for payment. C.R.S. § 8-4-109(3). If the employer fails to make
payment after 14 days following the demand, the employer becomes liable for the unpaid
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wages and an additional statutory penalty of two times the unpaid wages. Id. If the
employee can show that the employer’s failure or refusal to pay wages was willful, the
automatic penalty increases to three times the amount of the unpaid wages. Id. Here,
Plaintiffs argue, and Magistrate Judge Neureiter found, that liquidated damages under
the FLSA and the statutory penalties imposed by the CWCA are analytically distinct. ECF
No. 71 at 5. The Court agrees that liquidated damages imposed by the FLSA and statutory
penalties under Colorado law are not duplicative because they serve different purposes.
Evans v. Loveland Auto. Invs., Inc., 632 F. App’x 496, 498 (10th Cir. 2015) (holding “FLSA
liquidated damages are meant to compensate employees wrongfully unpaid their wages,
but that the CWCA penalty is meant to punish employers that wrongly fail to pay their
employees’ earned wages.”). Thus, Plaintiffs are appropriately awarded both FLSA
liquidated damages and statutory penalties under the CWCA.
3. 	Theft Damages
Pursuant to C.R.S. § 18-4-401, “a person commits theft when he or she knowingly
obtains, retains, or exercises control over anything of value without authorization or by
threat or deception” and “intends to deprive the other person permanently of the use
benefit of the thing of value[.]” C.R.S. § 18-4-401(1)(a). In any action for theft, “all property
obtained by theft . . . shall be restored to the owner” and “the owner may recover two
hundred dollars or three times the amount of actual damages sustained by him, whichever
is greater.” C.R.S. § 18-4-405.
Magistrate Judge Neureiter recommended finding that Defendant is liable for theft
but concluded that Plaintiffs were not entitled to treble damages on the theft claim as
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“Colorado law does not allow a plaintiff to receive double compensation for the same
wrongdoing.” ECF No. 70 at 9. Plaintiffs object to that portion of the Recommendation,
arguing that they are entitled to recover treble damages for theft even though they also
are properly awarded statutory penalties under the CWCA. See, e.g., ECF No. 71 at 2.2
The interaction between the CWCA and Colorado’s theft statute has been
specifically addressed by the Colorado legislature. As expressly provided by the CWCA,
“In addition to any other penalty imposed by this article 4”—meaning the Wage Claim
Act—“any employer or agent of an employer who willfully refuses to pay wages or
compensation as provided in this article 4 . . . with the intent to . . . delay or defraud the
person to whom such indebtedness is due, commits theft as defined in section 18-4-401.”
C.R.S. § 8-4-114(2) (emphasis added). Through this provision the Colorado legislature
made two things clear: (1) an employee has multiple claims for relief for an employer’s
failure to pay wages, and (2) an employer may be subject to multiple penalties in any
action to recover wages.
It is well settled that “the first step in interpreting a statute is to determine whether
the language at issue has a plain and unambiguous meaning with regard to the particular
dispute in the case.” Robinson v. Shell Oil Co, 519 U.S. 337, 340 (1997). Whether
statutory language is ambiguous is determined by “reference to the language itself, the
specific context in which that language is used, and the broader context of the statute as
a whole.” Id. at 341 (citation modified).
2 Indeed, FLSA liquidated damages serve a difference purpose than damages under the CWCA, see, e.g.,
C.R.S. § 8-4-109(3), or Colorado’s theft statute, C.R.S. § 18-4-401. In other words, there is no need to
analyze whether treble damages for theft are duplicative of liquidated damages under the FLSA. Compare,
e.g., Jordan, 379 F.3d at 1202, with C.R.S. § 18-4-405.
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As noted above, the Colorado legislature intentionally and explicitly carved out
multiple remedies for wage violations. See § 8-4-114(2) (“In addition to any other penalty
imposed by this article 4 . . .”); Rake v. Wade, 508 U.S. 464, 471 (1993) (“To avoid denying
effect to a part of a statute, we accord significance and effect to every word.” (citation
modified)). There is no ambiguity whatsoever. See, e.g., Donovan v. FirstCredit, Inc., 983
F.3d 246, 253 (6th Cir. 2020) (“If the language of the statute is clear, the court applies the
statute as written.” (citation modified)). Through enactment of § 8-4-114(2), the legislature
contemplated that an employee who was intentionally delayed or defrauded by the willful
refusal to pay wages could bring both an action under the CWCA and a claim for theft
under § 18-4-401. See Nair v. Columbus State Cmty. Coll., No. 2:02–cv–595, 2008 WL
483333, at *9 (S.D. Ohio Feb. 19, 2008) (“Congress ‘unequivocally expresses’ its intent
by using unmistakably clear statutory language.” (quoting Dellmuth v. Muth, 491 U.S. 223,
227-28 (1989)). The plain language of § 8-4-114(2) says as much—even directly citing
“section 18-4-401.” Moreover, the legislature specifically contemplated that in addition to
any penalty imposed by the CWCA (i.e. statutory penalties), an employee could also be
entitled to the penalties provided by the theft statute. Indeed, the use of the words “other
penalty” must be read to give full meaning to the statute. See, e.g., In re Nice Sys., Ltd.
Sec. Litig., 135 F. Supp. 2d 551, 569 (D.N.J. 2001) (“[A] court, when interpreting a statute,
may not simply read words out of the statute.” (citation modified)); Rake, 508 U.S. at 471.
Any other reading, particularly one that concludes that the legislature specifically
authorized multiple avenues for relief only to deny the remedies attached to those
avenues, does not comport with the plain reading of the statute, which is a clear
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expression of legislative intent to permit recovery under such avenues. See, e.g., In re
Nice Systems, 135 F. Supp. 2d at 569; Nair, 2008 WL 483333, at *9.
A review of the purposes of the CWCA and the theft statute support this
construction. Statutory damages under the CWCA are intended to penalize employers
who fail to pay their employees lawful wages after receiving a written demand. See C.R.S.
§ 8-4-109. As its plain statutory language confirms, under the CWCA an employee need
not demonstrate any level of fraud, deception, or intent of the employer for the statutory
penalty of two times the wages to attach after the fourteen-day period has passed.
Further, if the employee can demonstrate that the employer acted willfully in their
nonpayment, three times the wages can be assessed as a penalty. See id. § 8-4-
109(3)(b)(II).
The deceptive and intentional behavior required to support an award of treble
damages for theft, however, requires a higher and more pervasive level of conduct than
that required for “willfulness” under C.R.S. § 8-4-109. See also Van Rees v. Unleaded
Software, Inc., 373 P.3d 603, 608 (Colo. 2016). To recover treble damages for theft of
services, an employee must demonstrate that an employer (1) willfully refused to pay the
plaintiff and (2) possessed the intent to “annoy, harass, oppress, hinder, coerce, delay,
or defraud” the plaintiff. C.R.S. § 8-4-114(2). Thus, as Plaintiffs correctly observe, not
every violation of the CWCA will support the finding that treble damages are appropriate
for a theft claim. See ECF No. 71 at 2. But importantly, in some cases, a willful failure to
pay wages under the CWCA will also support a finding of liability and a treble damages
award on a theft claim—if a plaintiff demonstrates that, consistent with § 8-4-114(2)’s
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unambiguous language, an employer also had the intent to “annoy, harass, oppress,
hinder, coerce, delay, or defraud” the plaintiff.
As noted by Plaintiffs in their Limited Objection, “Defendant could have made the
decision, once the company no longer had cash on hand to let the employees go, knowing
fully well that he did not have the means with which to pay them.” ECF No. 71 at 8.
Plaintiffs also contend, “on a more personal level, [Defendant] expressly and overtly tried
to deceive Plaintiff Conejo by falsely denying he was owed the amount of wages he was
claiming.” Id. This direct knowledge about the underpayments, coupled with an intentional
effort to deceive employees and induce them to continue to work, goes beyond a mere
failure to pay wages. See also § 8-4-114(2). When an employer actively misleads
employees into believing they will receive payment, knowing that its indebtedness makes
payment impossible, that is a separate wrongdoing that cannot be equated to the mere
failure to pay wages. See id.
As a direct consequence of Defendant’s fraudulent conduct, Plaintiffs suffered a
substantial emotional and financial injury, the exact kind of harm that C.R.S. § 8-4-114
seeks to punish and remedy. As alleged by Plaintiffs, if not for Defendant’s dishonesty,
Plaintiffs could have left the company and found other employment. ECF No. 71 at 8. But
Defendant continued to inform Plaintiffs that they would be paid their owed wages,
preventing them from seeking other employment opportunities under the false impression
that their labor would eventually be compensated. ECF No. 71 at 8. The Court concludes
Defendant’s withholding of payments, even though also willful under C.R.S. § 8-4-109, is
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a separate, intentional wrongdoing warranting an award of treble damages. See also § 8-
4-114(2).
In reaching this conclusion, the Court is mindful that Colorado law also prohibits
an award of damages for the exact same injury. 	If two claims “arise from the same
operative facts, and seek identical relief, an award of damages under both theories will
constitute double recovery.” J.M. v. Hilldale Independent School Dist., 397 F. App’x 445,
460 (10th Cir. 2010) (citation modified). But in making this determination, the Court is
obligated to focus on the nature of the injury alleged and facts giving rise to it. See, e.g.,
id.; Livshee v. City of Woodward, No. CIV–12–1411–D, 2013 WL 5942277, at *3 n.5 (W.D.
Okla. Nov. 6, 2013).
Several courts in this jurisdiction have addressed the notion of double recovery in
similar contexts with different results. In Miller v. Dirty Pit Craft House, LLC, No. 23–cv–
00183–GPG–SBP, 2024 WL 4110792 (D. Colo. March 24, 2024), Judge Gallagher
awarded statutory damages for a willful violation of the CWCA and treble damages for
theft in a wage theft case. Id. at *4 However, in Kimes v. Alshawy, No. 23–cv–00082–
RMR–MDB, 2024 WL 2864147 (D. Colo. May 20, 2024), report and recommendation
adopted, No. 23–cv–00082–RMR–MDB, 2024 WL 3341013 (D. Colo. June 7, 2024),
Magistrate Judge Braswell recommended—and Judge Rodriguez ultimately adopted
such recommendation—that a plaintiff could not recover treble damages under both
C.R.S. § 8-4-109(3) and C.R.S. § 8-4-114(2) because the plaintiff’s theft claim and wage
claims were based on the very same wrongdoing. See id. at *6. In Kimes, plaintiffs were
employed by defendants as personal care workers for defendant’s health care company.
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Id. at *1. The owners failed to pay their personal care workers for multiple pay periods
and failed to meet the applicable minimum wage requirements. Id. In rejecting recovery
under both statutes, Magistrate Judge Braswell reasoned that the theft of services claim
stemmed from the same injury at the center of the other claims. Id. at *5 (“Here, allowing
recovery under Plaintiffs’ [theft] claim for the very same wrongdoing that supports
Plaintiff’s wages claims, would contravene basic principles of fairness.” (emphasis
added)). See also Gomez v. Timberline Custom Builders, LLC, No. 23–cv–01510–RMR,
2025 WL 2613741, at *5 (D. Colo. Sept. 10, 2025) (denying recovery of treble damages
for plaintiffs’ theft of services claim in addition to the statutory penalty under the CWCA,
concluding “Colorado law does not allow a plaintiff to receive double compensation for
the same wrongdoing” (citation modified)). Key to this conclusion, however, was the
absence of any evidence that there were separate injuries relating to the withholding of
payments. Kimes, 2024 WL 2864147, at *6 (“[H]ere, there is no indication of separate
injuries relating to the withholding of payments.”).
Unlike the plaintiffs in Kimes and Gomez, who could not discern separate injuries
stemming from their theft claims and their wage claims, Plaintiffs here have alleged that
they suffered two separate injuries due to Defendant’s failure to pay their earned wages:
(1) the willful delay in payment after a demand was made and (2) the fraudulent conduct
to induce the Plaintiffs to continue working and the resulting harm in delaying other
employment in reliance on that fraud. ECF No. 45 at 10–11. Thus, Kimes and Gomez are
materially distinguishable, and the Court disagrees with the magistrate judge’s contrary
conclusion. Cf. ECF No. 70 at 9.
Case No. 1:24-cv-00232-CNS-NRN Document 75 filed 03/30/26 USDC Colorado
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Here, Plaintiffs have clearly articulated how penalties imposed under C.R.S. § 8-
4-109 and C.R.S. § 8-4-114 are due to separate wrongful acts and separate injuries. See
also § 8-4-405. The Court finds that allowing Plaintiffs to recover under both C.R.S. §
8-4-109 and C.R.S. § 8-4-114 does not constitute duplicative recovery because the
language of the statutes confirms that the Colorado legislature intended to provide
multiple penalties for wage theft under multiple theories of relief. See, e.g., Nair, 2008 WL
483333, at *9; Donovan, 983 F.3d at 253. Accordingly, the Court sustains Plaintiffs’ limited
objections as to the magistrate judge’s determination regarding this recovery and
reverses such determination. For the reasons set forth above, Plaintiffs have shown
entitlement to the relief that they seek.
IV. CONCLUSION
The Court concludes Plaintiffs are entitled to recover treble damages based on the
theft claim in addition to triple lost wages as a statutory penalty under the CWCA.
Explained above, the Court finds that recovery under both statutes does not constitute
impermissible double compensation because the Plaintiffs suffered distinct injuries from
different wrongdoings. Thus, and consistent with the above analysis, the Court ORDERS
as follows:
1. 	The 	Court 	AFFIRMS and 	ADOPTS 	IN 	PART 	Magistrate 	Judge 	Neureiter’s
Recommendation, 	ECF 	No. 	70. 	The 	Court 	REVERSES 	IN 	PART 	the
Recommendation, 	and 	therefore 	GRANTS 	the 	Plaintiffs’ 	Motion 	for 	Default
Judgment, ECF No. 45.
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2. 	Defendant is ORDERED to pay Plaintiffs and Class Members the amount of
damages as set forth in the Magistrate Judge’s Recommendation, see ECF No.
70 at 14–22;
3. 	Defendant is FURTHER ORDERED, consistent with the above analysis, to pay
Plaintiffs and Class Members treble damages under C.R.S. § 18-4-405 in the
combined, total amount of:
a. 	$661,020.96 for Plaintiffs; and
b. 	$921,247.08 for Class Members.
4. 	The Clerk of the Court is directed to enter final judgment in favor of Plaintiffs and
against Defendant in the amount of $2,544,121.86
5. 	Plaintiffs are awarded post-judgment interest on the foregoing sums from the date
judgment is entered at the rate set by the Clerk of the Court until Defendant
complies with the judgment.
6. 	Plaintiffs are granted leave to file a motion for reasonable attorney’s fees and costs
incurred in connection with this litigation. An appropriate motion shall be filed within
fourteen (14) days of this Order.
DATED this 30th day of March 2026.
BY THE COURT:
______________________________
Charlotte N. Sweeney
United States District Judge
Case No. 1:24-cv-00232-CNS-NRN Document 75 filed 03/30/26 USDC Colorado
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