Ramirez v. Urion Construction LLC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X JOSE RAMIREZ, ALEJANDRO NAVARRETE, WILMER CAIZA, and SEGUNDO YANZAPANTA, individually and Civil Docket No.: on behalf of all others similarly situated, 22-cv-03342 (LGS) ____________ Plaintiffs, PROPOSED -against- DEFAULT JUDGMENT ORDER URION CONSTRUCTION LLC, and HERIBERTO GONZALEZ SIRIAS, as an individual, Defendants. --------------------------------------------------------------------------X This action was commenced pursuant to the filing of a Summons and Complaint on April 25, 2022 (ECF Dkt. No. 1), which, was served on URION CONSTRUCTION LLC, and HERIBERTO GONZALEZ SIRIAS, as an individual (“Defendants”), as follows: 1. On May 5, 2022, Plaintiffs’ Summons and Complaint was duly served on URION CONSTRUCTION LLC, by personal delivery of process on Sue Zousky, AUTHORIZED AGENT in the Office of the N.Y. Secretary of State, pursuant to N.Y. Limited Liability Company Law Section 303.

2. On May 26, 2022, the Summons and Complaint was served on HERIBERTO GONZALEZ SIRIAS, as an individual, by personal delivery of process to the Defendant’s last known residence, and usual place of abode and by leaving the documents with Maria, wife of HERIBERTO GONZALEZ SIRIAS, as an individual, a person of suitable age and discretion co-residing there.

3. Additionally, the Defendants were served with additional true and correct copies of Plaintiffs’ Summons and Complaint on May 26, 2022, at HERIBERTO GONZALEZ SIRIAS’ last known residence, and usual place of abode, and process was delivered there to Maria, wife of HERIBERTO GONZALEZ SIRIAS, as an individual, a person of suitable age and discretion co-residing there.

4. Plaintiffs apprised The Court by letter dated June 22, 2022, inter alia, that: “[i]t is respectfully submitted that all Defendants herein have been successfully served – corporate defendant, Urion Construction LLC, was served on May 5, 2022 via the office of the Secretary of State; and again at its place of business on May 26, 2022 (Dkt. Nos. 7- 8); individual defendant, Heriberto Gonzalez Sirias, was personally served with process on May 26, 2022 at the defendant’s last known residence.” Moreover, Plaintiffs apprised The Court that: “[a]fter serving Defendants, and in compliance with the Order, we contacted Defendants at their regular place of business, during normal business hours, to ascertain whether or not Defendants intend on appearing in this matter or retaining counsel to appear on their behalf. The undersigned spoke directly with individual defendant, Heriberto Gonzalez Sirias, and apprised Mr. Sirias of the above, and of Defendants’ obligations in this matter. Mr. Sirias appeared somewhat agitated during our phone conversation and indicated that the Defendants do not intend on retaining counsel to appear or otherwise defend this matter; and that Mr. Sirias would ‘pass along this message to the other owner(s) of Urion,’ at which point, Mr. Sirias ‘will know, and will inform us, as to whether Defendants have decided to retain counsel to appear on their behalf.’ As such, we interpret[ed] Defendants’ response to advising them of the above as a refusal to cooperate.”

5. On that same day, June 23, 2022, Plaintiffs filed proof of service on the docket on All Defendants, of inter alia: (a) the Order of the Hon. Lorna G. Schofield, U.S.D.J. dated May 6, 2022; (b) the Order of the Hon. Lorna G. Schofield, U.S.D.J. dated June 22, 2022; and (c) Plaintiffs’ above referenced Letter, dated June 23, 2022. Plaintiffs served Defendants with these documents at the corporate defendant’s actual place of business, and the individual defendant’s last known residence and actual place of abode.

6. In addition to Plaintiffs’ counsel’s telephone conversation with individual defendant, HERIBERTO GONZALEZ SIRIAS, as an individual, on June 23, 2022, Plaintiffs’ counsel contacted, and spoke directly with HERIBERTO GONZALEZ SIRIAS, as an individual, on August 2, 2022, during which, HERIBERTO GONZALEZ SIRIAS hung up the phone to terminate the phone call, expressing again, that neither he, nor URION CONSTRUCTION LLC, will respond, appear, or otherwise defend in this matter.

7. Accordingly, upon Plaintiffs’ request, the Clerk of Court entered the Default of All Defendants, URION CONSTRUCTION LLC, and HERIBERTO GONZALEZ SIRIAS, as an individual, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, on August 2, 2022, for the Defendants’ failure to appear or defend in this matter.

8. On August 2, 2022, Plaintiffs apprised The Court, inter alia, that: “earlier today we contacted Defendants and again spoke directly with the individual defendant, Mr. Sirias, who made it clear that no one is or will be appearing in this matter for Defendants, and specifically, moreover, that no one will be appearing on behalf of the Defendants by tomorrow’s deadline. Therefore, prior to the filing of this letter, we filed Plaintiffs’ Requests for Certificates of Default as against all Defendants (Dkt. Nos. 16-17), true and correct copies of which are being served on the Defendants, together with this letter.

9. The Plaintiffs’ Letter Motion dated August 2, 2022, and the Clerk’s Entry of Default against all Defendants, were each served on Defendants via United States Certified First- Class Mailing: (i) to URION CONSTRUCTION LLC at its place of business and registered address for receiving service of documents per N.Y. Department of State Records; and (ii) to HERIBERTO GONZALEZ SIRIAS, as an individual, to at his last known residence and actual place of abode To date, the Defendants have not responded, appeared, or otherwise defended in this matter, and remain in default.

10. Defendant URION CONSTRUCTION LLC, is not an infant, nor an incompetent.

11. Defendant HERIBERTO GONZALEZ SIRIAS, as an individual, is not an infant, nor an incompetent; HERIBERTO GONZALEZ SIRIAS, as an individual, is the competent, adult owner of the defendant corporate entity sued herein; and HERIBERTO GONZALEZ SIRIAS is not in active military service of the United States, as appears from the facts comprising this litigation.

12. The Defendants have not appeared, responded, nor otherwise defended, since the above referenced Certificates were duly entered by the Clerk of Court, and served on Defendants.

13. It is respectfully submitted that the Defendants have been properly served, are aware of the Plaintiffs’ Complaint and of pendency of this matter against them, and have willfully and deliberately failed or refused to appear, or otherwise defend in this matter.

14. As of the date of this filing, the Defendants have demonstrated no intention or desire to defend in this action.

THEREFORE: WHEREAS, Defendants are liable to the Plaintiffs on the First Cause of Action for Overtime Wages Under The Fair Labor Standards Act; and WHEREAS, Defendants are liable to the Plaintiffs on the Second Cause of Action for Overtime Wages Under New York Labor Law; and WHEREAS, Defendants are liable to the Plaintiffs on the Third Cause of Action for Unpaid Wages Under The Fair Labor Standards Act; and WHEREAS, Defendants are liable to the Plaintiffs on the Fourth Cause of Action for Unpaid Wages Under The New York Labor Law; and WHEREAS, Defendants are liable to the Plaintiffs on the Fifth Cause of Action for Violations of Frequency of Pay Requirements Under New Yor Labor Law; and WHEREAS, Defendants are liable to the Plaintiffs on the Sixth Cause of Action for Violation of the Wage Statement Requirements of the New York Labor Law; and WHEREAS, Defendants are liable to the Plaintiffs on the Seventh Cause of Action for Violation of the Notice and Recordkeeping Requirements of the New York Labor Law; ORDERED, ADJUDGED AND DECREED that, pursuant to Rule 55 of the Federal Rules of Civil Procedure, Plaintiffs have judgment against Accordingly, it is hereby: Defendants Urion Construction LLC and Heriberto Gonzales Sirias in amounts to be determined by post-default judgment inquest. _O_R__D_E__R_E__D_, _A__D_J_U_D__G_E__D_ _A_N__D_ _D_E__C_R__E_E_D__: _T_h_a_t_ P_l_a_in_t_if_f_ J_O__S_E_ _R_A_M__I_R_E_Z__, _h_a_s _a_ _ju_d_g_m__e_n_t _a_g_a_in_s_t_ _U_R__IO__N_ _C__O_N__S_T_R_U__C_T_I_O_N__ _L_L__C_, __a_n_d_ _H_E__R_I_B_E_R_T__O_ _G__O_N__Z_A_L__E_Z_ _S_I_R_I_A__S_, _a_s_ _a_n_ _in_d_i_v_i_d_u_a_l,_ i_n_ t_h_e_ l_iq_u_i_d_a_te_d_ _a_m_o_u_n_t_ o_f_ _$_ 3_2_6_,_9_2_7_.0_2_,_ c_o_n_s_is_t_in_g_ _o_f_: _(a_)_ u_n_p_a_i_d_ o_v_e_r_t_im__e_ w__ag_e_s_ _in_ _th_e_ _s_u_m_ _o_f _$_ _7_7_,1_8_7_._8_0_; _a_n_d_ (_b_) _l_iq_u_i_d_a_te_d_ _d_am__a_g_e_s_ i_n_ t_h_e_ s_u_m__ o_f_ $_ _7_7_,1_8_7_._8_0_; _a_n_d_ (_c_)_ l_iq_u_i_d_a_te_d_ _d_a_m_a_g_e_s_ _fo_r_ l_a_te_ _p_a_y_m_e_n_t_s_ i_n_ t_h_e_ s_u_m__ o_f_ _$_ 1_6_2_,_5_5_1_.4_1_;_ a_n_d_ _(_d_) _s_ta_t_u_to_r_y_ d_a_m__a_g_e_s _i_n_ t_h_e_ a_m__o_u_n_t _o_f_ $_ _1_0_,0_0_0_._0_0_; _a_n_d_ i_t _is_ _______________________________________________________________________________ ORDERED, ADJUDGED AND DECREED: That Plaintiff ALEJANDRO NAVARRETE, has _______________________________________________________________________________ a judgment against URION CONSTRUCTION LLC, and HERIBERTO GONZALEZ SIRIAS, _______________________________________________________________________________ as an individual, in the liquidated amount of $ 242,251.56, consisting of: (a) unpaid overtime wages inthe-suntof$51265.69-and (bHiquidated damages inthe sum of $514,265.69-andte}- □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ inthe of $129,720.18: and (Ah statutory-damages □□ ORDERED, ADJUDGED AND DECREED- That Plaintiff WILMER □□□□□□□□□□□□□□□□□□□□□□□ REED-That Plait: VILMER DLA, He aiudemen against URION—-CONSTRUCTION- LLC and -HERIBERTO-GONZALEZ SIRIAS.—as—an— indiuwid in the Lauidated amount of $26 650.00 consictina of: anaid_overtime wanes in the-sum-of $2,850.00: and _(b) unpaid wages for work performed the sum of $1,200.00:— (cHiquidated damages in the sum-of $ 4,050.00: and (d) liquidated damages for late payments in— the-sum-of $ 8,550.00: and (d) statutory damages in the amount of $10,000.00: and it is— -ORDERED, ADJEDGED AND DECREED: That Plaintiff SEGUNDO YANZAPANTA □□□□ REED- hat Plait SEGUNDO AS APA A518 -a-judement-against URION-CONSTRUCTION LLC, and HERIBERTO- GONZALEZ SIRTAS— n_indiid in_the Lanidated amount of & 454 80 oncictine of: apaid_overtime wages the _-sum_of $$.360.49-and (b} ampaid wages _fer work performed in the sum ef $+4,500.00:-(eHiquidated damages in the sum of $ 9,860.49: and (eHiquidated damages fortate— -payments-inthe-sunof $25,086.38 and statutory - damages inthe-amount of $46,000-00:-—_®_ Amountingin—all to_judement inthe -sum—of $650,635.93 in favor_of Plaintiffs and against— Defendants;ptus-statutory—interest accrumg in accordance with 28-GS-€-$ 196+ from— : cad —untiLjud . “ir fat The Complaint alleges that Defendants violated the minimum wage and overtime provisions of the Fair Labor Standards Act, the New York Minimum Wage Act and the overtime, frequency of pay, notice and recordkeeping, and wage statement provisions of the New York Labor Law. The Complaint sufficiently pleads these claims to establish liability as a matter of law. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) ("[A] district court is required to determine whether the plaintiff's allegations establish the defendant's liability as a matter of law."). The Complaint adequately alleges that Defendants willfully failed to pay Plaintiffs applicable minimum wages, willfully failed to pay Plaintiffs overtime compensation, willfully failed to pay Plaintiffs weekly and failed to provide Plaintiffs with written notice of their rate(s) of pay and/or dates of work covered by any payments received.

An order referring the case for a damages inquest will issue separately.

Dated: September 26, 2022 .

New York, New York LORNA G. SCHOFIEL UNITED STATES DISTRICT JUDGE Page 6 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOSE RAMIREZ, ALEJANDRO NAVARRETE, WILMER CAIZA, and SEGUNDO YANZAPANTA, individually and on behalf of all others similarly situated, Plaintiffs, -against- URION CONSTRUCTION LLC, and HERIBERTO GONZALEZ SIRIAS, as an individual, Defendants.

PROPOSED DEFAULT JUDGMENT ORDER

Civil Docket No.: 22-cv-03342 (LGS)

HELEN F. DALTON & ASSOCIATES, P.C.

Attorneys for Plaintiffs 80-02 Kew Gardens Road, Suite 601 Kew Gardens, New York 11415 Phone: (718) 263-9591

SERVICE TO: All defendants via UPS Overnight Courtier To: URION CONSTRUCTION LLC Attention: Heriberto Gonzalez Sirias OLD BROADWAY NEW YORK, NY 10027-7912 HERIBERTO GONZALEZ SIRIAS BAYVIEW AVENUE JERSEY CITY, NJ 07305

See, Affidavit of Service filed and submitted herewith.