Filed: Dec. 17, 2014
Latest Update: Dec. 17, 2014
Summary: PLAINTIFF'S MOTION FOR JUDGMENT IN SUM CERTAIN ALEXIS D. MARTIN, Judge. Plaintiff, Mario Garcia, by and through his attorneys, Caffarelli & Associates, Ltd., moves this Honorable Court for entry of judgment in sum certain against Defendants H&Z Foods, Inc. d/b/a Save A Lot and Issa Zayyad, individually, pursuant to Fed. R. Civ. P. 55(b)(1). In support of his motion, Plaintiff states as follows: 1. On July 3, 2014, Plaintiff filed his two-count Complaint in the instant action alleging violati
Summary: PLAINTIFF'S MOTION FOR JUDGMENT IN SUM CERTAIN ALEXIS D. MARTIN, Judge. Plaintiff, Mario Garcia, by and through his attorneys, Caffarelli & Associates, Ltd., moves this Honorable Court for entry of judgment in sum certain against Defendants H&Z Foods, Inc. d/b/a Save A Lot and Issa Zayyad, individually, pursuant to Fed. R. Civ. P. 55(b)(1). In support of his motion, Plaintiff states as follows: 1. On July 3, 2014, Plaintiff filed his two-count Complaint in the instant action alleging violatio..
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PLAINTIFF'S MOTION FOR JUDGMENT IN SUM CERTAIN
ALEXIS D. MARTIN, Judge.
Plaintiff, Mario Garcia, by and through his attorneys, Caffarelli & Associates, Ltd., moves this Honorable Court for entry of judgment in sum certain against Defendants H&Z Foods, Inc. d/b/a Save A Lot and Issa Zayyad, individually, pursuant to Fed. R. Civ. P. 55(b)(1). In support of his motion, Plaintiff states as follows:
1. On July 3, 2014, Plaintiff filed his two-count Complaint in the instant action alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA) and Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1, et seq. (IMWL) for Defendants' failure to pay Plaintiff at a rate of one and one-half times his regular rate of pay for all hours worked in excess of forty (40) in one workweek.
2. On December 11, 2014, his Court entered an Order of Default Judgment against the Defendants for failure to appear or answer. D.E. 19.
3. Defendants employed Plaintiff as a meat cutter from April 18, 2013 through May 10, 2014. See Exhibit 1, Affidavit of Mario Garcia.
4. Defendants paid Plaintiff on an hourly basis at a regular rate of $14.00. Id.
5. Defendants did not pay Plaintiff the overtime premium for the hours he worked in excess of forty hours per work week. Id.
6. Defendants paid Plaintiff his straight hourly rate of pay, thus he is owed the overtime premium. Id.
7. The overtime premium owed to Plaintiff is $7.00 per hour ($14.00 × 0.5). See Exhibit 2, Affidavit of Damages Calculations.
8. It is the employer's duty to make, keep, and preserve all records of employees' wages, hours, and other conditions and practices of employment. 29 U.S.C. § 211(c); 820 Ill. Comp. Stat. 105/8.
9. Plaintiff does not have access to Defendant's time records to provide an exact accounting of every hour worked.
10. Plaintiff worked between 86 and 90 hours per week for the duration of his employment with Defendants. Ex. 1.
11. The Plaintiff's recollection of hours worked controls where the Company has not produced time records. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946).
12. Plaintiff's counsel used the following calculations to determine the amount of overtime compensation owed to Plaintiff:
a. Plaintiff's regular rate of pay was $14.00 per hour.
b. Plaintiff's overtime premium was $7.00 per hour ($14.00 × 0.5).
c. The time period of April 18, 2013 through May 10, 2014 equates to fifty-five (55) weeks.
d. Plaintiff worked between 86 and 90 hours per week. Plaintiff worked an average of 88 hours per week (86+87+88+89+90/5 = 88).
e. Thus, Plaintiff worked an average of forty-eight (48) hours of overtime (88-40) for 55 weeks.
f. Plaintiff worked 2,640 hours of overtime (48 hours per week × 55 weeks).
g. Defendants owe Plaintiff $18,480.00 in unpaid overtime compensation ($7.00 per hour × 2,640 hours).
13. Under the FLSA, Plaintiff seeks liquidated damages, 29 U.S.C. § 216(b), 29 C.F.R. § 790.22(a). Such damages include an amount equal to the unpaid wages, and are presumed. See Shea v. Galaxie Lumber & Construction Co., 152 F.3d 729 (7th Cir. 1998). Thus, Defendants owe Plaintiff $18,480.00 in liquidated damages.
14. In addition, Plaintiff seeks to recover attorney's fees and costs. Under the FLSA, the court shall allow a reasonable attorney's fee and costs for the prevailing plaintiff to be paid by the defendant. 29 U.S.C. § 216(b). Under the IMWL, a prevailing employee may recover costs and reasonable attorney's fees. 820 Ill. Comp. Stat. 105/12(a).
15. Plaintiff's attorneys have incurred $910.70 in costs. See Exhibit 3, Affidavit of Attorney's Fees and Costs.
16. Plaintiff's attorneys have accrued $8,345.00 in attorneys' fees. Id.
WHEREFORE, Plaintiff, Mario Garcia, respectfully requests this Honorable Court to enter judgment against Defendants H&Z Foods, Inc. d/b/a Save A Lot and Issa Zayyad, individually in the total amount of $46,053.20 ($18,480.00 in unpaid overtime compensation, $18,480.00 in liquidated damages, $8,345.00 in attorneys' fees, and $910.70 in costs), and for such other relief as this Court finds just and equitable.
Exhibit 1
MARIO GARCIA,
No. 14-cv-5101
Plaintiff,
Judge Ronald A. Guzman
v.
H & Z FOODS, INC., d/b/a SAVE ALOT, and
ISSA ZAYYAD, individually,
Magistrate Judge Maria Valdez
Defendants.
AFFIDAVIT OF MARIO GARCIA
I, Mario Garcia, being first duly sworn on oath, depose and state as follows:
1. My name is Mario Garcia and I am over the age of 21.
2. I am the Plaintiff in the above-captioned matter.
3. The statements made in this affidavit are based upon my personal knowledge.
4. I was employed by Issa Zayyad and H&Z Foods dib'a Save A Lot as a meat cutter from April 18, 2013 through May 10, 2014.
5. Issa Zayyad is the owner and president of H&Z Foods and Save A Lot.
6. From April 18, 2013 through May 10, 2014, the Defendants paid me $14.00 per hour.
7. I regularly worked more than forty hours per work week, without breaks or days off.
8. Defendants paid me $14.00 per hour for the hours I worked over forty hours per work week.
9. At no time did the Defendants pay me at an overtime rate for the hours I worked in excess of forty hours per work week.
10. I do not have an exact accounting of my time records because any time records would be in the possession or control of the Defendants and are not available to me.
11. I worked between 86 and 90 hours per workweek for the period of April 18, 2013 through May 10, 2014.
12. Defendants owe me $18,480.00 in unpaid overtime compensation.
FURTHER AFFIANT SAYETH NAUGHT,
_____________________________
MARIO GARCIA
Subscribed and sworn to before me
this 17 day of December, 2014
___________________
Notary public
Exhibit 2
MARIO GARCIA,
No. 14-cv-5101.
Plaintiff,
Judge Ronald A. Guzman
v.
H & Z FOODS, INC., d/b/a SAVE ALOT, and
ISSA ZAYYAD, individually,
Magistrate Judge Maria Valdez
Defendants.
AFFIDAVIT OF DAMAGES CALCULATIONS
I, Alexis D. Martin, being first duly sworn on oath, depose and state as follows:
1. My name is Alexis D. Martin and I am over the age of 21.
2. I am one of the attorneys for the Plaintiff in the above-captioned matter.
3. The statements made in this Affidavit are based upon my personal knowledge.
4. This action was filed as a two-count complaint under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., (FLSA) and the Illinois Minimum Wage Law, 820 ILL. COMP. STAT. 105/1, et seq. (IMWL).
5. I relied upon Plaintiff's recollection of the hours he worked in calculating the amount of overtime compensation Defendants owe him for the period of April 18, 2013 through May 10, 2014.
6. For the period of April 18, 2013 through May 10, 2014, I used the following calculations to determine the amount of overtime compensation Defendants owe Plaintiff:
a. Plaintiff's regular rate of pay was $14.00 per hour.
b. Plaintiff's overtime premium was $7.00 per hour ($14.00 × 0.5).
c. The time period of April 18, 2013 through May 10, 2014 equates to fifty-five (55) weeks.
d. Plaintiff worked between 86 and 90 hours per week. Consequently, Plaintiff worked an average of 88 hours per week (86+87+88+89+90/5 = 88).
e. Thus, Plaintiff worked an average of forty-eight (48) hours of overtime (88-40) for 55 weeks.
f. Plaintiff worked 2,640 hours of overtime (48 hours per week × 55 weeks).
g. Defendants owe Plaintiff $18,480.00 in unpaid overtime compensation ($7.00 per hour × 2,640 hours).
7. Based upon the aforementioned calculations, I found the total overtime compensation Defendants owe to Plaintiff for the statutory period to be $18,480.00.
FURTHER AFFIANT SAYETH NAUGHT,
_____________________________
ALEXIS MARTIN
Subscribed and sworn to before me
this 17 day of December, 2014
___________________
Notary public
Exhibit 3
MARIO GARCIA,
No. 14-cv-5101.
Plaintiff,
Judge Ronald A. Guzman
v.
H & Z FOODS, INC., d/b/a SAVE ALOT, and
ISSA ZAYYAD, individually,
Magistrate Judge Maria Valdez
Defendants.
AFFIDAVIT OF ATTORNEY'S FEES AND COSTS
I, Alexis D. Martin, being first duly sworn on oath, depose and state as follows:
1. My name is Alexis D. Martin and I am over the age of 21.
2. I am one of the attorneys for the Plaintiff in the above-captioned matter.
3. The statements made in this Affidavit are based upon my personal knowledge.
4. This action was filed as a two-count complaint under the Fair Labor Standards Act, 29 U.S.C. § 201, et seg., (FLSA) and the Illinois Minimum Wage Law, 820 ILL. COMP. STAT. 105/1, et seq. (IMWL).
5. Under the FLSA, the court shall allow a reasonable attorney's fee and costs for the plaintiff to be paid by the defendant. 29 U.S.C. § 216(b).
6. Under the IMWL, a prevailing employee may recover costs and reasonable attorney's fees. 820 Ill. Comp. Stat. 105/12(a).
7. Two associate attorneys, Madeline K. Engel and Alexis D. Martin, have worked on this matter. Associate attorneys billed at a rate of $270.00 per hour until October 31, 2014.
8. As of November 1, 2014, I began billing at a rate of $275.00 per hour.
9. Lorraine Peters is Of Counsel and billed at a rate of $320.00 per hour.
10. Alejandro Caffarelli, is a partner and billed at a rate of $425.00 per hour.
11. Plaintiff's attorneys have spent 27.25 hours of work in bringing this action, incurring fees of $8,345.00.
12. Plaintiff's attorneys have incurred $910.70 in costs.
FURTHER AFFIANT SAYETH NAUGHT,
_____________________________
ALEXIS D. MARTIN
Subscribed and sworn to before me
this 17 day of December, 2014
___________________
Notary public
