IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, SOUTHERN DIVISION

)

GIOVANNI ("HENRY") MONTOYA

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c/o Washington Lawyers' Committee for )

Civil Rights and Urban Affairs

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11 Dupont Circle, NW Suite 400

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Washington, DC 20036

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[Plaintiffresident in Montgomery Cty., MD] )

)

ALEXANDER FIGUEROA

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c/o Washington Lawyers' Committee for )

Civil Rights and Urban Affairs

)

11 Dupont Circle, NW Suite 400

)

Washington, DC 20036

)

[Plaintiff resident in Montgomery Cty., MD])

)

MANUEL CARRERA

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c/o Washington Lawyers' Committee for )

Civil Rights and Urban Affairs

)

11 Dupont Circle, NW Suite 400

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Washington, DC 20036

)

)

IVAN APLICANO

)

c/o Washington Lawyers' Committee for )

Civil Rights and Urban Affairs

)

11 Dupont Circle, NW Suite 400

)

Washington, DC 20036

)

[Plaintiffresident in Montgomery Cty., MD])

)

On behalf of themselves and all

)

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

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S.c.c.P. Painting Contractors, Inc.,

)

11024 Old Frederick Road

)

Thurmont, MD 21702

)

[Frederick County, MD]

)

)

Giovanni (a.k.a. "John") Sulmonte

)

Case No. Collective Action and Class Action Complaint

Individually and doing business as

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S.C.c.P. Painting Contractors, Inc.,

)

11024 Old Frederick Road

)

Thurmont, MD 21702

)

[Frederick County, MDJ

)

)

Defendants.

)

Plaintiffs and Class members, through their undersigned attorneys, for their Collective Action and Class Action Complaint against Defendants S.C.C.P. Painting Contractors, Inc. ("S.C.C.P") and Giovanni Sulmonte, individually and doing business as S.C.C.P. Painting Contractors, Inc., (collectively, "Defendants"), hereby allege as follows:
NATURE OF THE ACTION 1. Plaintiffs, together with members of the Collective Action Class, the Maryland Subclass, and D.C. Subclass (collectively, "Class members") were employed by Defendants as non-exempt employees and bring this action against Defendants for engaging in a uniform and systematic scheme of wage payment abuse against individuals who performed primarily painting-related work on behalf ofDefendants in Maryland and in Washington, D.C. This scheme involved, inter alia, failing to pay all wages owed for work performed, failing to pay for work that Plaintiffs and Class members were required to perform "off-the-clock," failing to pay Plaintiffs and other workers overtime compensation owed to them for hours over forty worked in any given workweek, and/or deducting amounts from employees' pay, purportedly for tax purposes, but on information and belief not for that purpose at all. 2. As a result of Defendants' systematic scheme and practice of failing to properly pay employees for work performed throughout Washington D.C. and Maryland, Defendants have violated the Fair Labor Standards Act, 29 U.S.c. §§ 201, et seq. ("FLSA"); the Maryland Wage

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and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401, et seq. ("MWHL"); the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. §§ 3-501, et seq. ("MWPCL"); the D.C. Minimum Wage Law, D.C. Code Ann. §§ 32-1001, et seq. ("DCMWL"); the D.C. Payment and Collection of Wages Law, D.C. Code Ann. §32-1301, et seq.("DCPCWL").; and Maryland and District of Columbia common law.
THE PARTIES 3. Plaintiff Giovanni ("Henry") Montoya ("Mr. Montoya") resides in the State of Maryland. He performed work for the benefit of Defendants beginning on or about December 16,2005, when he was directed by Defendants to perform painting work at a job site in Maryland. Mr. Montoya subsequently was assigned by Defendants to perform work on behalf of the Defendants in the District of Columbia. He ceased to perform work for the benefit of the Defendants in April 2006. 4. For the entirety of his tenure as an employee of Defendants, Mr. Montoya worked an average of six days a week, ten hours per day. Defendants, inter alia, failed to pay Mr. Montoya certain paychecks owed him (in their entirety) and never paid Mr. Montoya overtime for the hours over 40 he worked in any given workweek. 5. Plaintiff Alexander Figueroa ("Mr. Figueroa") resides in the State of Maryland. He performed work for the benefit of Defendants beginning on or about December 16, 2005, when he was assigned by Defendants to perform painting work at a job site in Maryland. Mr. Montoya subsequently was assigned by Defendants to perform work on their behalf in the District of Columbia. He ceased to perform work for the benefit ofthe Defendants in April 2006.
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6. For the entirety of his tenure as an employee of Defendants, Mr. Figueroa worked an average of six days a week, ten hours per day. The Defendants, inter alia, failed to pay Mr. Figueroa certain paychecks owed him (in their entirety); never paid Mr. Figueroa overtime for the hours over forty he worked in any given workweek; and refused to allow him to record on his time sheets hours he in fact worked, thereby forcing him to perform work "off-the-clock." 7. Plaintiff Manuel Carrera ("Mr. Carrera") resides in the State of Virginia. He was assigned by Defendants to perform work, including painting work, for the benefit of Defendants in the District of Columbia beginning in February 2006 and ceasing in April 2006. 8. For the entirety of his tenure as an employee of Defendants, Mr. Carrera worked an average of six days a week, ten hours per day. The Defendants, inter alia, failed to pay Mr. Carrera certain paychecks owed him (in their entirety); never paid Mr. Carrera overtime for the hours over 40 he worked in any given workweek; and deducted amounts from certain paychecks for the stated purpose of tax withholding (but on information and belief not for that purpose at all). 9. PlaintiffIvan Aplicano ("Mr. Aplicano") resides in the State of Maryland. He was assigned by Defendants to perform work for their benefit beginning on or about December 16, 2005, when he was directed to perform painting work at a job site in Maryland. Defendants subsequently assigned Mr. Aplicano to performed work on their behalf in the District of Columbia. He ceased to perform work for the benefit ofthe Defendants in April 2006. 10. For the entirety of his tenure as an employee of Defendants, Mr. Aplicano worked an average of six days a week, ten hours per day. The Defendants, inter alia, failed to pay Mr.
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Aplicano certain paychecks owed him (in their entirety) and never paid Mr. Aplicano overtime for the hours over 40 he worked in any given workweek. 11. Plaintiffs and Class members did not perform work that would qualifY for an exemption under the applicable federal or state wage payment schemes. Plaintiffs and Class members were paid hourly, and were never salaried employees of Defendants. 12. Defendant S.C.C.P. Painting Contractors, Inc. is a forfeited Maryland corporation with its principal place of business in Frederick, Maryland. Upon information and belief, S.C.C.P.'s business is focused on the provision of commercial interior painting services in the D.C. metropolitan area. Notwithstanding its failure to comply with the State of Maryland's statutory requirements for corporations, S.c.c.P. continues to do business in at least Maryland and Washington, D.C., as it has for the entirety of the time period relevant to this Complaint. Ascenzo Sulmonte is listed in documents on file with Maryland's State Department of Assessments and Taxation as the Resident Agent for S.C.c.P. 13. Defendant Giovanni ("John") Sulmonte (hereinafter "John Sulmonte" or "Mr. Sulmonte") resides in Frederick, Maryland. He is, upon information and belief, an officer of S.c.c.P. Mr. Sulmonte is highly involved in and/or responsible for overseeing the running of S.C.C.P. 14. The unlawful acts charged in this Complaint were done by Defendants themselves or were authorized, carried out, ordered, or done by Defendants' officers, agents, employees, or representatives, while actively engaged in the management of the Defendants' businesses or affairs.
JURISDICTION AND VENUE
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15. This Court has subject matter jurisdiction over Count I pursuant to 29 U.S.c. § 216(b), and 28 U.S.C. §§ 1331 and 1337 because this action arises under the laws of the United States and the Acts of Congress regulating commerce. 16. Pursuant to 28 U.S.c. § 1367(a), this Court has supplemental jurisdiction over all state law claims alleged herein because those claims arise from a common set of operative facts and are so related to the claims in the action within the original jurisdiction of the Court that they form part of the same case or controversy. 17. This Court has personal jurisdiction over all Defendants hereto because Defendant S.C.C.P. is a Maryland corporation, and Defendant John Sulmonte resides in this State. 18. Venue is proper in this District pursuant to 28 U.S.C. § 1391 (b) because Defendants reside and/or have their principal place of business in Maryland.
COLLECTIVE ACTION CLASS, MARYLAND SUBCLASS AND DC SUBCLASS 19. This action is brought as a collective action pursuant to 29 U.S.C. § 216(b), on behalf of Plaintiffs Henry Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano, and all other persons who are or have been employed by Defendants as hourly-paid workers between February 21,2004 and the date of the final disposition ofthis action (the "Class Period"). These individuals will be referred to as "the Collective Action Class" or "the members of the Collective Action Class." 20. This action is also brought as a class action pursuant to Fed. R. Civ. P. 23 by Plaintiffs Henry Montoya and Alexander Figueroa on behalf of themselves and all similarly situated nonexempt, hourly paid employees who worked for the benefit of Defendants at worksites in the State of Maryland between February 21,2004 and the date of the final disposition of this action.
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This group of workers shall heretofore be referred to as the "Maryland Subclass." Plaintiffs Henry Montoya and Alexander Figueroa allege claims pursuant to the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401, et seq. ("MWHL"), the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. §§ 3-501, et seq. ("MWPCL"), and Maryland common law. 21. In addition, this action is brought as a class action pursuant to Fed. R. Civ. P. 23 by Plaintiffs Manuel Carrera and Ivan Aplicano on behalf of themselves and all similarly situated non-exempt, hourly paid employees who worked on behalf of Defendants at worksites in the District of Columbia during the Class Period (the "D.C. Subclass"). Plaintiffs Manuel Carrera and Ivan Aplicano allege claims pursuant to the D.C. Minimum Wage Law, D.C. Code Ann. §§ 32-1001, et seq. ("DCMWL"), the D.C. Payment and Collection of Wages Law, D.C. Code Ann. § 32-1301, et seq. ("DCPCWL"), and D.C. common law.
FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS 22. Defendant S.C.C.P. is in the business of providing commercial interior painting services. The business also involves, at times, the setting and finishing of concrete floors. 23. Defendant John Sulmonte, on behalf of Defendant S.C.C.P., authorized, assented to, or was aware of the work performed by Plaintiffs and Class members for the benefit of Defendants. 24. Plaintiffs' and Class members' entree to the work at issue in this Complaint was through agents or representatives of S.C.C.P. Agents or representatives of S.C.C.P. set the Plaintiffs' or Class members' hourly salaries and told Plaintiffs and Class members to report for work at particular job sites. When compensation was paid to Plaintiffs and Class members, it was by means of checks reflecting "SCCP Painting Contractors Inc." as the drawer of the check.
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25. Upon infonnation and belief, Defendants directly benefited from the work of in excess of 500 individuals whom they assigned to work on their behalf in the District of Columbia and Maryland during the Class Period. Defendants received payment from their own customers for the work perfonned for their benefit. 26. Defendants had a legal obligation to pay their employees for work perfonned and to pay overtime compensation for hours worked in excess of forty (40) each week. 27. Despite Defendants' obligations under relevant wage and hour laws, Defendants intentionally created and implemented a system through which they denied Plaintiffs and Class members all wages owed for each hour worked and one-and-one-halftimes their regular hourly rate of pay for hours worked in excess of forty hours during each workweek. 28. Upon infonnation and belief, Defendants' scheme to deny payment of wages took at least four fonns:
a. Failure to pay any wages at all for any work perfonned during certain periods, including withholding entire paychecks from Plaintiffs and Class members;
b. Failure to pay wages for work that Plaintiffs and Class members were directed to perfonn, yet were not allowed to account for on time sheets;
c. Failure to pay one-and-a-halftimes Plaintiffs' and Class members' regular hourly rate of pay for hours they worked in excess of forty (40) hours weekly;
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d. The deduction of wages from paychecks, purportedly for tax withholding purposes, that on information and belief was not in fact withheld for that purpose.
25. To this day, Plaintiffs and Class members have not been paid an compensation owed them for hours worked during the Class Period. 26. Throughout the Class members' employment with Defendants, Defendant S.C.C.P. issued company checks each pay period, but neglected to include, inter alia, a statement of the gross earnings of the employee or deductions from those gross earnings. 27. Defendant John Sulmonte had decision-making authority over S.C.C.P.'s payroll employment policies and practices, including but not limited to the hourly-paid employees' rate ofpay, overtime hours, and pay dates, method of payment, the maintenance of employee records, the power to hire and fire, and the assignment of employees to S.c.c.P. worksites. 28. Upon information and belief, Defendants failed to keep payroll records containing all information required by law. 29. The compensation policies and practices set forth above constitute willful, knowing, and intentional violations of the FLSA, the MWHL, the MWPCL, the DCMWL, the DCPCWL, and also constitute violations of Maryland and District of Columbia common law.
COLLECTIVE ACTION ALLEGATIONS 30. The collective action that Plaintiffs propose to maintain under the Fair Labor Standards Act, 29 U.S.C. § 216(b), includes all individuals who are or have been employed by Defendants as non-exempt, hourly employees and who were not paid at all for hours they worked, and/or
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were not paid overtime for the hours over 40 they worked in any given workweek between February 21,2004 and the date of the final disposition of this action. 31. During the Class Period, the harms suffered by members of the Collective Action Class were the same as or substantially similar to those suffered by Plaintiffs, in that Plaintiffs and the members of the Collective Action Class are and were subject to the unlawful compensation policies and practices as described in this Complaint. 32. Accordingly, Plaintiffs and all members ofthe proposed collective action are "similarly situated" within the meaning of29 U.S.C. § 216(b), and are therefore entitled to proceed on a collective basis. 33. While the exact number of members of the Collective Action Class is unknown to the Plaintiffs at the present time, Plaintiffs believe that there may be more than five hundred similarly situated persons who are or have been employed as non-exempt, hourly employees of Defendants and who were not paid at all for hours they worked, and/or were not paid overtime for the hours over 40 they worked between February 21,2004 and the date of the final disposition of this action. Thus, a collective action is the most efficient mechanism for resolution of the claims of the members of this Collective Action Class. 34. In addition, an action under 29 U.S.C. § 216(b) is superior to other available methods for the fair and efficient adjudication of this controversy since the damages suffered by certain individual members of the Collective Action Class may be relatively small, and the expense and burden of individual litigation would make it impossible for such Collective Action Class members individually to redress the wrongs done to them. In addition, because of the similarity
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of the Collective Action Class members' claims, individual actions would present the risk of inconsistent adjudications, subjecting the Defendants to incompatible standards of conduct. 35. Annexed hereto as Exhibit 1 is written consent to the filing of this Complaint, duly executed by Plaintiffs pursuant to 29 U.S.c. § 216(b).
CLASS ACTION ALLEGATIONS (ON BEHALF OF THE MARYLAND SUBCLASS) 36. This action is also brought on behalf of members of a subclass of Defendants' employees to whom both the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401, et seq. ("MWHL"), and the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. §§ 3-501, et seq. ("MWPCL") apply. 37. The claims ofthe Maryland Subclass are properly maintainable as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(3). 38. The Maryland Subclass is defined as follows: "All of Defendants' non-exempt, hourly employees who worked on behalf of Defendants at worksites in the State of Maryland since February 21,2004 and who were not paid all wages owed to them and/or who worked more than forty (40) hours during any given workweek of their employment without receiving time-and-ahalf for the hours over 40 worked in any given workweek." 39. The "Maryland Subclass Period" is the time period between February 21,2004 and the time of the final disposition of this action. 40. Upon information and belief, there are at least 200 present and former hourly-paid employees in the Maryland Subclass. 41. The members of the Maryland Subclass are so numerous that joinder of all members is impracticable.
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42. Plaintiff Henry Montoya's and Plaintiff Alexander Figueroa's claims are typical of the claims of the members of the Maryland Subclass because they, and all Maryland Subclass members, are or were subject to the unlawful compensation practices as described in this Complaint. 43. Plaintiffs Montoya and Figueroa are adequate representatives of the Maryland Subclass because they and the members of the Maryland Subclass are or were subject to and damaged by the same unlawful compensation practices as described in this Complaint. 44. Plaintiffs Montoya, Figueroa, and members ofthe Maryland Subclass each challenge the legality of the policies and practices as described in this Complaint. By advancing their own claims, Plaintiffs Montoya and Figueroa will necessarily advance the claims of the members of the Maryland Subclass. 45. Plaintiffs Montoya and Figueroa will have no conflict with any members of the Maryland Subclass and are willing to serve in this representative role. 46. Plaintiffs Montoya and Figueroa have retained counsel that are competent and experienced in class action litigation and who will adequately represent the Maryland Subclass. 47. Questions of fact and law common to all members of the Maryland Subclass will predominate over any questions solely affecting individual members of the Subclass. Among the common questions are:
a. Whether the unlawful policies and practices set forth in this Complaint took place as alleged; and
b. Whether Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass are entitled to relief as requested in this Complaint.
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48. Because Plaintiffs Montoya, Figueroa, and all members of the Maryland Subclass suffered the same harms and challenge the same unlawful compensation policies and practices described in this Complaint, a class action is superior to the alternatives, if any, for the fair and efficient adjudication of the controversy alleged herein. Such treatment will permit a large number of similarly-situated persons to prosecute their common claims in a single forum simultaneously and efficiently, without the duplication of effort and expense and the risk of inconsistent or varying adjudications presented by numerous individuals. 49. No difficulties are likely to be encountered in the management ofthis class action, and the identity of the Maryland Subclass should be readily available from Defendants' records.
CLASS ACTION ALLEGATIONS (ON BEHALF OF THE D.C. SUBCLASS) 50. This action is also brought on behalf of members of a subclass of Defendants' employees to whom both the D.C. Minimum Wage Law, D.C. Code Ann. §§ 32-1001, et seq. (("DCMWL") and the D.C. Payment and Collection of Wages Law, §§ 32-1301, et seq. ("DCPCWL") apply. 51. The claims of the D.C. Subclass are properly maintainable as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(3). 52. The D.C. Subclass is defined as follows: "All of Defendants' non-exempt, hourly employees who worked on behalf of Defendants at worksites in the District of Columbia since February 21,2004 and who were not paid all wages owed to them and/or who worked more than forty hours during any given workweek of their employment without receiving time-and-a-half for the hours over forty worked in any given workweek." 53. The "D.C. Subclass Period" is the time period between February 21,2004 and the time of the final disposition of this action.
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54. Upon infonnation and belief, there are at least 200 present and fonner hourly-paid employees in the D.C. Subclass. 55. The members ofthe D.C. Subclass are so numerous that joinder of all members is impracticable. 56. Plaintiff Manuel Carrera's and PlaintiffIvan Aplicano's claims are typical of the claims of the members ofthe D.C. Subclass because they and all Subclass members are or were subject to the same unlawful compensation practices set forth in this Complaint. 57. Plaintiffs Manuel Carrera and Ivan Aplicano are adequate representatives ofthe D.C. Subclass because they and the members ofthe D.C. Subclass are or were subject to and damaged by the same unlawful compensation practices set forth in this Complaint. 58. Plaintiffs Manuel Carrera, Ivan Aplicano, and members ofthe D.C. Subclass each challenge the legality of the policies and practices set forth in this Complaint. By advancing their own claims, Plaintiffs Carrera and Aplicano will necessarily advance the claims ofthe members ofthe D.C. Subclass. 59. Plaintiffs Manuel Carrera and Ivan Aplicano will have no conflict with any members of the D.C. Subclass and are willing to serve in this representative role. 60. Plaintiffs Manuel Carrera and Ivan Aplicano have retained counsel that are competent and experienced in class action litigation and who will adequately represent the D.C. Subclass. 61. Questions of fact and law common to all members of the D.C. Subclass will predominate over any questions solely affecting individual members ofthe Subclass. Among the common questions are:
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a. Whether the policies and practices set forth in this Complaint took place as alleged; and
b. Whether Plaintiffs Carrera, Aplicano and members ofthe D.C. Subclass are entitled to relief as requested in this Complaint.
62. Because Plaintiffs Carrera, Aplicano, and all members ofthe D.C. Subclass suffered the same harms and challenge the same unlawful compensation policies and practices set forth in this Complaint, a class action is superior to the alternatives, if any, for the fair and efficient adjudication of the controversy alleged herein. Such treatment will permit a large number of similarly-situated persons to prosecute their common claims in a single forum simultaneously and efficiently, without the duplication of effort and expense and the risk of inconsistent or varying adjudications presented by numerous individuals. 63. No difficulties are likely to be encountered in the management ofthis class action, and the identity of the D.C. Subclass should be readily available from Defendants' records.
COUNT I
(Violation of the FLSA - Plaintiffs and Collective Action Class) 64. Plaintiffs and Collective Action Class members re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 65. Plaintiffs and Collective Action Class members are or were employed by Defendants on an hourly basis to perform manual labor and/or other duties that do not satisfy the tests for exempt positions under the FLSA.
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66. Defendants failed to payor caused Plaintiffs and Collective Action Class members not to be paid at least the minimum wage for all hours worked on behalf of Defendants in violation of 29 U.S.C. § 206(a). 67. Plaintiffs and Collective Action Class members each worked more than forty (40) hours in one or more workweeks within the Class Period. 68. In violation of29 U.S.C. § 207(a), Defendants failed to pay Plaintiffs and Collective Action Class members or caused Plaintiffs and Collective Action Class members not to be paid for overtime at a rate of at least one-and-a-half times the employees' regular rate of pay for hours over forty (40) worked in any given workweek. 69. Defendants' violations ofthe FLSA were repeated, willful, and intentional. Accordingly, a three-year statute oflimitations governs this claim pursuant to 29 U.S.C. § 255(a). 70. Plaintiffs and Class members have been damaged by said violations ofthe FLSA. 71. For their violation of the FLSA, Defendants are liable to the Plaintiffs and members of the Collective Action Class for back pay, all unpaid overtime compensation, plus an additional amount as liquidated damages, and costs and reasonable attorneys' fees incurred in the maintenance of this action.
COUNT II (Violation of the Maryland Wage and Hour Law Plaintiffs Montoya, Figueroa and
Maryland Subclass Members) 72. Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 73. Plaintiffs and the members of the Maryland Subclass are or were employed by Defendants on an hourly basis within the Class Period.
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74. Defendants failed to payor caused Plaintiffs and numerous Maryland Subclass members not to be paid at least the minimum wage for all hours worked on behalf of the Defendants in violation of Section 3-413 of the MWHL. 75. Defendants failed to pay the Plaintiffs one and one-half their regular rate of pay for every hour worked in excess of 40 hours per week for the entire period of employment, in violation of Section 3-415 of the MWHL. 76. Defendants' violations were repeated, willful, and intentional. 77. As a result ofthe unlawful acts of Defendants, Plaintiffs Montoya and Figueroa and members of the Maryland Subclass have been deprived of compensation in amounts to be determined at trial, and are entitled to recovery of such amounts, pre- and post-judgment interest thereon, and attorneys' fees and costs.
COUNT III (Violation of the Maryland Wage Payment and Collection Law - Plaintiffs Montoya,
Figueroa, and Maryland Subclass Members) 78. Plaintiffs Montoya, Figueroa, and members ofthe Maryland Subclass re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 79. Plaintiffs and the members ofthe Maryland Subclass are or were employed by Defendants on an hourly basis within the Class Period. 80. The Defendants failed and refused to timely pay the Plaintiffs' earned wages, in violation of the MWPCL. 81. At all times alleged herein, S.C.C.P. was an employer and Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass were employees of Defendants as defined by Section 3501 ofthe MWPCL.
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82. Pursuant to the MWPCL, Defendants were and are obligated to pay their employees for all wages earned on a regular basis. Their failure to do so as described herein constitutes a violation of the MWPCL. 83. In addition, Section 3-505 ofthe MWPCL requires employers to pay employees for all wages earned prior to the termination of employment. As described herein, Defendants also failed to do so. 84. The Defendants' failure to pay the Plaintiffs' wages is not the result of a bona fide dispute. 85. Defendants' violations were repeated, willful, and intentional. 86. As a result ofthe unlawful acts of Defendants, Plaintiffs Montoya and Figueroa and members of the Maryland Subclass have been deprived of compensation in amounts to be determined at trial, and are entitled to recovery of such amounts, pre- and post-judgment interest thereon, and attorneys' fees and costs.
COUNT IV (Breach of Oral Employment Contract - Plaintiffs Montoya, Figueroa, and Maryland
Subclass Members) 87. Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 88. Defendants entered into binding oral contracts with Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass for employment, imposing duties on these parties including, but not limited to, the payment of hourly wages in exchange for work performed by Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass for the benefit of the Defendants.
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89. Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass performed under the oral contracts by faithfully and efficiently executing their work duties for as long as they were permitted to do so. 90. Defendants' failure to perform their duties with respect to the payment of wages constitutes a breach of contract by the Defendants. 91. By reason of Defendants' breach, Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass suffered economic harm and are entitled to the payment of wages due, prejudgment interest, and other compensation that Plaintiffs Montoya, Figueroa, and members of the Maryland Subclass would have received but for Defendants' breach of contract.
COUNT V (Unjust Enrichment/Quantum Meruit Plaintiffs Montoya, Figueroa, and Maryland
Subclass Members) 92. Plaintiffs Montoya, Figueroa, and members ofthe Maryland Subclass re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 93. By performing painting work at the direction of the Defendants without receiving all compensation to which they were entitled under law, Plaintiffs Montoya, Figueroa, and Maryland Subclass members allege that they conferred substantial benefits upon the Defendants. 94. The Defendants appreciated and were aware of these benefits. Upon information and belief, Defendants received valuable compensation for the work performed by Plaintiffs Montoya, Figueroa, and Maryland Subclass members. 95. Defendants accepted and retained the benefits ofthe work performed by Plaintiffs Montoya, Figueroa, and Maryland Subclass members.
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96. The hours that Plaintiffs Montoya, Figueroa, and Maryland Subclass members worked and for which they were not properly compensated were performed at the direction and behest of Defendants or those authorized to act on behalf of Defendants. Plaintiffs Montoya, Figueroa, and Maryland Subclass members did not perform this work voluntarily, but rather with the expectation ofbeing lawfully compensated. 97. Under these circumstances, it is inequitable for the Defendants to accept or retain the benefits of the work performed by Plaintiffs Montoya, Figueroa, and Maryland Subclass members without making full payment for its value.
COUNT VI (Violation of the D.C. Minimum Wage Law Plaintiffs Carrera, Aplicano, and D.C.
Subclass Members) 98. Plaintiffs Carrera, Aplicano, and members ofthe D.C. Subclass re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 99. Defendants failed and refused to pay Plaintiffs and Class members the required D.C. minimum wage for each hour worked, in violation of Section 32-1 003 (a)(2) of the DCMWL. 100. Defendants failed and refused to pay Plaintiffs and Class members one-and-a-half times their regular rate of pay for all hours worked in excess of forty (40) each week, in violation of Section 32-1 003 (c) of the DCMWL. 101. Defendants' violations of the DCMWL were repeated, willful and intentional. 102. As a result of the unlawful acts of Defendants, Plaintiffs Carrera, Aplicano, and members of the D.C. Subclass have been deprived of compensation in amounts to be determined at trial, and are entitled to recovery of such amounts, pre- and post-judgment interest thereon, and attorneys' fees and costs.
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COUNT VII (Violation of the D.C. Payment and Collection of Wages Law Plaintiffs Carrera,
Aplicano, and D.C. Subclass Members) 103. Plaintiffs Carrera, Aplicano, and members of the D.C. Subclass re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 104. Defendants failed and refused to pay Plaintiffs Carrera, Aplicano, and members of the D.C. Subclass their earned straight and overtime wages in violation of the DCPCWL, Section 32-1301, et seq. 105. Defendants violations of the DCPCWL were repeated, willful, and intentional. 106. As a result of the unlawful acts of Defendants, Plaintiffs Carrera, Aplicano, and members of the D.C. Subclass have been deprived of compensation in amounts to be determined at trial, and are entitled to recovery of such amounts, pre- and post-judgment interest thereon, and attorneys' fees and costs.
COUNT VIII (Breach of Oral Employment Contract - Plaintiffs Carrera, Aplicano, and D.C. Subclass
Members) 107. Plaintiffs Carrera, Aplicano, and members of the Maryland Subclass re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 108. Defendants entered into binding oral contracts with Plaintiffs Carrera, Aplicano, and members ofthe D.C. Subclass for employment, imposing duties on these parties including, but not limited to, the payment of hourly wages in exchange for work performed by Plaintiffs Carrera, Aplicano, and members of the D.C. Subclass for the benefit of the Defendants.
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109. Plaintiffs Carrera, Aplicano, and members of the D.C. Subclass performed under the oral contracts by faithfully and efficiently executing their work duties for as long as they were permitted to do so. 110. Defendants' failure to perform their duties with respect to the payment of wages constitutes a breach of contract by the Defendants. 111. By reason of Defendants' breach, Plaintiffs Carrera, Aplicano, and members of the D.C. Subclass suffered economic harm and are entitled to the payment of wages due, prejudgment interest, and other compensation that Plaintiffs Carrera, Aplicano, and members ofthe D.C. Subclass would have received but for Defendants' breach of contract.
COUNT IX
(Unjust Enrichment/Quantum Meruit - Plaintiffs Carrera, Aplicano and D.C. Subclass Members)
112. Plaintiffs Carrera, Aplicano, and members of the D.C. Subclass re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 113. By performing painting work at the direction of the Defendants without receiving all compensation to which they were entitled under law, Plaintiffs Carrera, Aplicano, and D.C. Subclass members allege that they conferred substantial benefits upon the Defendants. 114. The Defendants appreciated and were aware of these benefits. Defendants received valuable compensation for the work performed by Plaintiffs Carrera, Aplicano, and D.C. Subclass members. 115. Defendants accepted and retained the benefits of the work performed by Plaintiffs Carrera, Aplicano, and D.C. Subclass members.
22

116. The hours that Plaintiffs Carrera, Aplicano, and D.C. Subclass members worked and for which they were not properly compensated were performed at the direction and behest of Defendants or those authorized to act on behalf of Defendants. Plaintiffs Carrera, Aplicano, and D.C. Subclass members did not perform this work voluntarily, but rather with the expectation of being lawfully compensated. 117. Under these circumstances, it is inequitable for the Defendants to accept or retain the benefits of the work performed by Plaintiffs Carrera, Aplicano, and D.C. Subclass members without making full payment for its value.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf ofthemselves and members of the Collective Action Class, the Maryland Subclass and the D.C. Subclass, respectfully request that the Court: A. Declare this Action to be maintainable as a collective action pursuant to 29 U.S.C. § 216(b); B. Determine the damages sustained by Plaintiffs and Collective Action Class members during the Class Period as a result of Defendants' willful and intentional violations of29 U.S.C. § 207(a), and award such back pay and unpaid overtime against Defendants in favor of Plaintiffs and all members of the Collective Action Class, plus an additional equal amount as liquidated damages pursuant to 29 U.S.c. § 216(b), plus such pre-judgment interest as may be allowed by law; and C. Declare this Action to be maintainable as a Class Action as to the Maryland and D.C. Subclasses, respectively, pursuant to Fed. R. Civ. P. 23.
23

D. Determine the damages sustained by Plaintiffs Montoya, Figueroa, and Maryland Subclass members during the Maryland Subclass Period as a result of Defendants' willful and intentional violations of both the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401, et seq. and the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. §§ 3-501, et seq., as wen as Maryland common law, and award all appropriate damages resulting therefrom to Plaintiffs and the members of the Maryland Subclass, including treble damages under the MWPCL; and E. Determine the damages sustained by Plaintiffs Carrera, Aplicano, and D.C. Subclass members during the D.C. Subclass Period as a result of Defendants, willful and intentional violations ofboth the D.C. Minimum Wage Law, D.C. Code Ann. §§ 321001, et seq., the D.C. Payment and Collection of Wages Law, § 32-1301, et seq., as well as District of Columbia common law, and award all appropriate damages resulting therefrom to Plaintiffs and the members of the Maryland Subclass; and F. Award Plaintiffs and the members of the Collective Action Class, the Maryland Subclass and the D.C. Subclass, their costs and disbursements ofthis suit, including, without limitation, reasonable attorneys' fees, accountants' fees, investigators' fees, experts' fees, and other associated costs; and G. Grant Plaintiffs and the members ofthe Collective Action Class, the Maryland Subclass, and the D.C. Subclass such other and further relief as this Court may deem just and proper. PLAINTIFFS AND CLASS MEMBERS DEMAND A TRIAL BY JURY ON ALL CLAIMS SO TRIABLE.
24

arela (Bar No. 28260) Susan E. Huhta (Bar No. 14547) Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, DC 20036 Phone: 202-319-1000 Fax: 202-319-1010 E-mail: laura_varela@washlaw.org
sue_huhta@washlaw.org
David J. Cynamon Anne E. Langford ar No. 16439) Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street, N.W. Washington, D.C. 20037 Phone: 202-663-8000 Fax: 202-663-8007 E-mail: david.cynamon@pillsburylaw.com
anne.langford@pillsburylaw.com Counsel for Plaintif.fs
24

EXHIBIT 1

CONSENT TO ACT AS PLAINTIFF
Pursuant to 29 U.S.c. §216(b), I consent to act as a plaintiff in this case, both on my own behalf and on behalf of all persons similarly situated.

CONSENT TO ACT AS PLAINTIFF
Pursuant to 29 U.S.C. §216(b), I consent to act as a plaintiff in this case, both on my own behalf and on behalf of all persons similarly situated.
Dated: _____ _ ~~~-=-L

CONSENT TO ACT AS PLAINTIFF
Pursuant to 29 U.S.c. §216(b), I consent to act as a plaintiff in this case, both on my own behalf and on behalf of all persons similarly situated.
Dated: ----~~~~~---

CONSENT TO ACT AS PLAINTIFF
Pursuant to 29 U.S.C. §216(b), I consent to act as a plaintiff in this case, both on my own behalf and on behalf of all persons similarly situated.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (BALTIMORE DIVISION)

GIOVANNI MONTOYA, et al.

*

*

Plaintiffs v.

* * * Case No.: 1:07-cv-00455-RDB

* S.C.C.P. PAINTING CONTRACTORS, INC., et al. *

*

Defendants

*

**************************************************************************

REPLY TO PLAINTIFFS' OPPOSITION TO

MOTION FOR MORE DEFINITE STATEMENT

Rule 12(e) of the Federal Rules of Civil Procedure permits a party to move for a more

definite statement before interposing a responsive pleading when the pleading to which a

responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be

required to frame a responsive pleading. This is the case here, where Plaintiffs wish to invoke

the wrath of a full blown class action without even properly identifying the full names and

addresses of parties involved, and improperly base their allegations against other purported

putative class members upon mere "information and belief'. As Rule 12(e) permits, a motion

shall point out the defects complained of and the details desired. Defendants have properly

done so.

These defects, which could simply be cured by a more definite statement, are of a

rudimentary nature. A simple identification of the four individual Plaintiffs by full name and

address is not a burdensome detail to desire. Without such detail the Complaint Calmot properly

be analyzed, nor has proper notice been provided to Defendants for verification and response.

Plaintiffs' failure in their opposition to address this specific detail requested, reveals they do not

Client DocumenlS:4817-1316-4289vlIK16926-00000014/23/2007

1

have this information to supply, or that the information that they do have is incomplete and without adequacy. Otherwise, such simple information would have been provided in the Complaint in the first place.
Cases cited by Plaintiffs stand for the proposition that federal rules require "notice pleading". But this glosses over other requirements of pleading contained expressly within the federal rules. Rule lO(a) requires pleading the names of all the parties. Rule lOeb) requires pleading each claim founded upon a separate transaction or occurrence. Rule 9(f) provides that avennents of time and place are material for pleading purposes. And, Rule 23 is replete with elements required to be pleaded in order to justify a class action.
In its basic form a Complaint which fails to provide complete names and addresses of the parties is a failure to provide notice to the Defendants. Without such information, Defendants in this instance are placed at a disadvantage to properly analyze and verify that each such individual actually had a working relationship with Defendants, and that such individual is a citizen of a given state and the United States for the purpose of maintaining standing to bring suit, not only on his own behalf, but as a representative of a particular class or subclass. Criticism that such information is contained within the Complaint is not accurate, and a rereading of the Complaint shows that full names and addresses are not anywhere provided for notice purposes or otherwise. Moreover, a review of the Complaint shows it entirely fails to aver (a) the type of work, (b) the specific job site, (c) the specific terms of the purported "oral contract", and (d) the specific FLSA violation for each of the individual Plaintiffs. Rather, what is provided is boilerplate law without applying specific facts to individual occurrences or people.

Client Documents:4817-1316-4289v IIK16926-00000014/23/2007

2

Requiring such detail is a proper use of Federal Rule 12(e), which permits the judge discretion to require a modicum of clarity to provide notice of claims, parties to the claims, and an association of facts to such parties. It requires Plaintiffs to provide notice of just who did what to whom. It avoids the unfairness of allowing Plaintiffs to shoot first and seek names, addresses, and facts later.
This procedure, provided under Rule 12(e), is especially helpful in a more complex case where class certification is being sought. That Plaintiffs fail to possess information upon which to base their claims for class action is revealed in paragraph 25 of their Complaint, which improperly and speculatively avers "upon information and belief' the possible existence of 500 individuals as members of a class or subclass, without identifying the specific members of the class or how they will or can be provided reasonable notice for proper representation under Rule 23(c). Plaintiffs in their opposition fail to address this deficiency. Complaints may not be based "upon information and belief', but must rather be based upon fact, whether or not the pleading is for purposes of providing "reasonable notice". Major class action litigation, possibly ruinous to a small business, should not be brought on whimsy. Discretion of the court should be applied to balance interests. Requiring these simple details within a more definite statement, so as to satisfy the pleading requirements of the Federal Rules, is not too much to ask, and would certainly not delay procedures, as such detail should have been provided within the Complaint in the first place.
The federal statute involved also requires individualized proof of damages, which in this instance clashes with the class action concept. In order to determine the feasibility of a class action, Defendants desire "each claim founded upon a separate transaction or occurrence" be pleaded for each individual plaintiff and class member, as required by Rule 1O(b), so as to have

Client DoclIll1ents:4817-1316-4289vIIK 16926-00000014/23/2007

3

the proper notice and information necessary to analyze the matter under the pleading requirements of the federal statute itself. This defect is also overlooked by Plaintiffs in their opposition.
Obtaining a true identity of a Plaintiff, or where he lives, is not something that need be gained only through discovery. And, Plaintiffs' flippant argument infootnote 2 that they do not concede that Defendants would even receive such information if sought in discovery, speaks volumes. Knowing about the party one must defend against is an initial notice requirement. Rule 12(e) properly allows the Court the discretion to prevent Plaintiffs from disguising their full names and addresses for class or subclass purposes, and permits the Court to require these defects be cured through a more definite statement.

WHEREFORE, Defendants respectfully request this Court to grant Defendants' Motion

for More Definite Statement.

~ v.. '. "'\ s

ly submitted,

C./)

.

~-f--.

I'-"~---

G. Randall Whittenberger

#025 !:j.

MILES & STOCKBRIDGE P.C. 30 West Patrick Street 6th FI.

Frederick, MD 21701

301-662-5155

301-662-3647 (Fax)

rwhittenberger@milesstockbridge.com

Attorneys for Defendants

Clien' Documents:48 17-13 I6-4289vIIKI6926-00000014/23/2007

4

CERTIFICATE OF SERVICE CY
IT IS HEREBY CERTIFIED that on this "2--"3';:aay of April, 2007, a copy of the
foregoing Reply to Opposition to Motion for More Definite Statement was automatically
transmitted by the Court in accordance with the Local Rules for Electronic Filing, to:
Laura E. Varela, Esq. Susan E. Huhta, Esq. Washington Lawyers' Committee for Civil Rights
and Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036
David J. Cynamon, Esq. Anne E. Langford, Esq. Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street N.W. Washington, D.C. 20037
tJJ1;d;6J;o ~
t G. Randall Whittenberger

Client DoclIlllenlS:4817·1316-4289v IIK16926.00000014/23/2007

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (BALTIMORE DIVISION)

GIOVANNI MONTOYA, et al.

*

*

Plaintiffs

*

*

v.

* Case No.: 1:07-cv-00455-RDB

* S.C.C.P. PAINTING CONTRACTORS, INC., et al. *

*

Defendants

*

**************************************************************************

ANSWER TO COMPLAINT

Defendants, S.C.c.P. Painting Contractors, Inc. and Giovanni Sulmonte, by and

through their attorneys, G. Randall Whittenberger and Miles & Stockbridge P.c., answer the

Complaint as follows:

FIRST DEFENSE

Answering the correspondingly numbered paragraphs of the Compliant, Defendants

aver:

1. Denied. 2. Denied. 3. Defendants are without knowledge or infornlation sufficient to form a belief as to
the truth of the first sentence. Second, third, and fourth sentences denied. 4. Denied. 5. Defendants are without knowledge or infornlation sufficient to fornl a belief as to
the truth of the first sentence. Second, third, and fourth sentences denied. 6. Denied. 7. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the first sentence. Second sentence denied. 8. Denied. 9. Defendants are without knowledge or information sufficient to fornl a belief as to
the truth of the first sentence. Second, third, and fourth sentences denied. 10. Denied. 11. Defendants are without knowledge or information sufficient to form a belief as to
what persons would purportedly represent Class members, and are thus without

Client DoclIl11ents:4827-1 042-7393v11K 16926-0000001511 4/2007

1

knowledge or infomlation to form a belief as to the truth of the avennent, thereby denying same. 12. Denied, except admitted that S.c.c.P. Painting Contractors, Inc., is a forfeited Maryland corporation and that Ascenzo Sulmonte is listed in documents on file with Maryland's State Department of Assessments and Taxation as resident agent for S.c.c.P. 13. Denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. 18. Denied. 19. Denied. 20. Denied. 21. Denied. 22. Denied. 23. Denied. 24. Denied. 25. Denied. 26. Denied. 27. Denied. 28. Denied. 25. Denied. 26. Denied. 27. Denied. 28. Denied. 29. Denied. 30. Defendants are without knowledge or infonnation sufficient to form a belief as to Plaintiffs' proposal, and thereby deny same. 31. Denied. 32. Denied. 33. Denied. 34. Denied. 35. Denied, except admitted that Exhibit I attaches four documents entitled, "Consent to Act as Plaintiff'. 36. Denied. 37. Denied. 38. Denied. 39. Denied. 40. Denied. 4l. Denied. 42. Denied. 43. Denied. 44. Denied. 45. Denied.

Client Docliments:4827·1 042·7393vllK 16926-000000151l4/2007

2

46. Defendants are without knowledge or infoffi1ation sufficient to form a belief as to truth of this aveffi1ent.
47. Denied. 48. Denied. 49. Denied. 50. Denied. 51. Denied. 52. Denied. 53. Denied. 54. Denied. 55. Denied. 56. Denied. 57. Denied. 58. Denied. 59. Denied. 60. Defendants are without knowledge or information sufficient to form a belief as to
truth of this averment. 61. Denied. 62. Denied. 63. Denied. 64. Defendants reallege and incorporate by reference each and every response set forth
in the preceding paragraphs. 65. Denied. 66. Denied. 67. Denied. 68. Denied. 69. Denied. 70. Denied. 71. Denied. 72. Defendants reallege and incorporate by reference each and every response set forth
in the preceding paragraphs. 73. Denied. 74. Denied. 75. Denied. 76. Denied. 77. Denied. 78. Defendants reallege and incorporate by reference each and every response set forth
in the preceding paragraphs. 79. Denied. 80. Denied. 81. Denied. 82. Denied. 83. First sentence calls for legal conclusion. Second sentence denied. 84. Denied. 85. Denied.

Client DoclIl11cnts:4827-1 042-7393vIIKI6926-00000015/14/2007

3

86. Denied. 87. Defendants reallege and incorporate by reference each and every response set forth
in the preceding paragraphs. 88. Denied. 89. Denied. 90. Denied. 91. Denied. 92. Defendants reallege and incorporate by reference each and every response set fOlih
in the preceding paragraphs. 93. Denied. 94. Denied. 95. Denied. 96. Denied. 97. Denied. 98. Defendants reallege and incorporate by reference each and every response set forth
in the preceding paragraphs. 99. Denied. 100. Denied. 10 1. Denied. 102. Denied. 103. Defendants reallege and incorporate by reference each and every response set forth
in the preceding paragraphs. 104. Denied. 105. Denied. 106. Denied. 107. Defendants reallege and incorporate by reference each and every response set fOlih
in the preceding paragraphs. 108. Denied. 109. Denied. 110. Denied. 111. Denied. 112. Defendants reallege and incorporate by reference each and every response set fOlih
in the preceding paragraphs. 113. Denied. 114. Denied. 115. Denied. 116. Denied. 117. Denied.
SECOND DEFENSE
The Plaintiff's Complaint fails to state a claim upon which relief can be granted.
THIRD DEFENSE
Plaintiff's claims are barred by the Statute of Limitations.

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4

FOURTH DEFENSE Plaintiff's claims are barred by laches.
FIFTH DEFENSE Plaintiff's claims are barred by waiver and estoppel.
SIXTH DEFENSE Plaintiff's claims are barred by accord and satisfaction.
SEVENTH DEFENSE Plaintiff's claims are barred by illegality.
EIGHTH DEFENSE Plaintiff's claims are barred by failure of consideration.
NINTH DEFENSE Plaintiff's claims are barred by payment.
TENTH DEFENSE This Court lacks jurisdiction.

Client DOClll11cnts:4827-1 042-7393v!IKI6926-00000015/14/2007

~lly sublTIlj.·.ptt.e...d~,::r--rr--t-__
-{}J~

G. Randall Whittenberger

#025 4

MILES & STOCKBRIDGE P.C. 30 West Patrick Street 6th Fl.

Frederick, MD 21701

301-662-5155

301-662-3647 (Fax)

rwhittenberger@milesstockbridge.com

Attorneys for Defendants

5

DEMAND FOR JURY TRIAL

Defendants demand a trial by jury.

tri2~~

G. Randall Whittenberger

#0251

MILES & STOCKBRIDGE P.c.

36 West Patrick Street 6th Fl.

Frederick, MD 21701

301-662-5155

301-662-3647 (Fax)

rwhittenberger@milesstockbridge.com

Attorneys for Defendants

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that on this ILf-l::!:7J:ay of May, 2007, a copy of the

foregoing Answer to Complaint was automatically transmitted by the Comi in accordance with

the Local Rules for Electronic Filing, to:

Laura E. Varela, Esq. Susan E. Huhta, Esq. Washington Lawyers' Committee for Civil Rights
and Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036

David J. Cynamon, Esq. Anne E. Langford, Esq. Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street N.W. Washington, D.C. 20037
<[i?~~-.-
G. Randall Whitteribel·~~T

Client Documents:4827-1 042-7393v 11K 16926-000000151 14/2007

6

 
 Case 1:07-cv-00455-CCB Document 52 Filed 02/26/08 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

:

GIOVANNI (“HENRY”) MONTOYA, et al., :

:

v.

:

:

S.C.C.P. PAINTING CONTRACTORS, INC., :

et al.

:

:

Civil No. CCB-07-455

ORDER In accordance with the foregoing Memorandum, it is hereby ORDERED that: 1. Plaintiffs’ Motion for Conditional Class Certification (docket entry no. 35) is GRANTED; 2. The plaintiffs’ proposed Alternative Notice Plan is APPROVED (see docket entry no. 35, Ex. B) in its entirety, with the costs to be borne equally by the plaintiffs and the defendants; and 3. A status report from each side is due March 21, 2008.

February 26, 2008 Date

/s/ Catherine C. Blake United States District Judge

 
 Case 1:07-cv-00455-CCB Document 107 Filed 03/19/09 Page 1 of 7 Case 1:07-cv-00455-CCB Document 105-2 Filed 03/16/2009 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

)

GIOVANNI ("HENRY") MONTOYA, )

et al.,

)

)

On behalf of themselves and all

)

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

S.C.C.P. PAINTING CONTRACTORS, )

INC., et al.,

)

)

Defendants.

)

Case No. 1:07-cv-0455 (CCB)

CONSENT DECREE Named Plaintiffs Montoya, Figueroa, Carrera, and Aplicano filed this action on February 21, 2007 claiming unpaid wages and unpaid overtime wages under the Fair Labor Standards Act, 29 U.S .C. § 201 et seq. ("FLSA"), the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. § 3-401 et seq. ("MWHL"), the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. § 3501 et seq. ("MWPCL"), the D.C. Minimum Wage law, D.C. Code Ann.§ 32-1001 et seq. ("DCMWL"), the D.C. Payment and Collection ofWages Law, D.C. Code Ann. § 32-1301 et seq. ("DCPCWL"), as well as violations under Maryland and District of Columbia common law. Defendants filed answers to the claims, denying any and all liability. The Named Plaintiffs brought their claims on their own behalf, as well as on behalf of a class of similarly-situated individuals. They moved for conditional class certification pursuant to 29 U.S.C. § 216(b) for the class of"all individuals who are or have been employed by Defendants as non-exempt,

401107799vl

Case 1:07-cv-00455-CCB Document 107 Filed 03/19/09 Page 2 of 7 Case 1:07-cv-00455-C CB Document 105-2 Filed 03/16/2009 Page 2 of 16
hourly-paid employees for the three years immediately prior to the date of conditional certification." (ECF No. 35.) On February 26, 2008, this Court granted the Motion for Conditional Class Certification and authorized notice to issue so that additional plaintiffs could opt into the lawsuit. (ECF Nos. 51, 52.) A number of additional individuals opted into the lawsuit. There are currently 19 individuals, including the Named Plaintiffs, who are participating in this lawsuit as members of the current Plaintiff class (hereinafter "Plaintiffs").
On December 16,2008, the Court issued an Order and accompanying Memorandum (ECF Nos. 90 and 91) granting Plaintiffs' Motion for Partial Summary Judgment, holding that Plaintiffs were covered FLSA employees when they worked for Defendant S.C.C.P., and as a result Defendant S.C.C.P. is liable to the Plaintiffs for underpayment of overtime wages, the amounts, if any, to be determined at trial. The Court also granted Plaintiffs' Motion for Leave to Amend Complaint to correct a misnomer and make clear that Ascenzo ("John") Sulmonte (not Giovanni Sulmonte, Ascenzo's father) is the individually-named Defendant in this case.
On February 10, 2009, the Named Plaintiffs, on behalf of Plaintiffs, and Defendants, through their respective counsel, agreed upon the terms of settlement reflected in this Decree. Defendants did so without admitting liability, but in order to fully and finally resolve all disputes. In reliance upon the representations contained herein, and in consideration of the mutual promises, covenants and obligations set forth in this Decree, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Plaintiffs and the Defendants (hereinafter, "the Parties") hereby stipulate and agree as follows.
2
401 107799vl

Case 1:07-cv-00455-CCB Document 107 Filed 03/19/09 Page 3 of 7 Case 1:07-cv-00455-C CB Document 105-2 Filed 03/16/2009 Page 3 of 16
I. Jurisdiction 1.1 This Court has jurisdiction over the subject matter of this action and jurisdiction over the Parties pursuant to 28 U.S.C. § 1331, 29 U.S.C. § 216(b), and 28 U.S.C. § 1367.
II. General Provisions 2. 1 This Consent Decree constitutes both an Order of the Court and a contract. 2.2 The Parties are simultaneously executing a Stipulated Order of Dismissal in the form attached hereto as Exhibit A ("Stipulated Order of Dismissal"). Counsel for the Parties shall not separately file the Stipulated Order of Dismissal until the time specified in this Consent Decree. 2.3 The Parties are also simultaneously executing a Stipulated Final Judgment in the form attached hereto as Exhibit B ("Stipulated Final Judgment"), which shall not be filed unless the Settlement Payments (described below) are not timely paid. 2.4 The Court shall retain jurisdiction over this action and this Consent Decree until all the terms have been satisfied and the Plaintiffs' claims have been dismissed with prejudice. 2.5 The Court has the authority to award (as described below), in its discretion, fees and costs attendant to any motions by any of the Parties to enforce the terms of this Consent Decree or any of its attachments. 2.6 If the Court declines to approve this Consent Decree, its terms shall be vacated nunc pro tunc, and the action shall proceed without prejudice to the Parties' rights. 2.7 This Consent Decree may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument.
3
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Case 1:07-cv-00455-CCB Document 107 Filed 03/19/09 Page 4 of 7 Case 1:07-cv-00455-CCB Document 105-2 Filed 03/16/2009 Page 4 of 16
III. Settlement Payments
3.I Defendants shall make a total settlement payment to Plaintiffs in the amount of two hundred thousand U.S. dollars ($200,000) (the "Settlement Amount"), which, if paid pursuant to the terms herein, constitutes full satisfaction of all claims, damages, costs and attorneys' fees related to this action.
3.2 Defendants shall pay the Settlement Amount in monthly installments over the course of twenty (20) months, beginning in March 2009. Defendants shall pay a total of $I5,000 per month for the first seven (7) months, beginning March I5, 2009, and shall pay a total of $95,000 over the course of the subsequent 13 months in equal monthly installments.
3.3 Defendants shall pay the Settlement Amount according to the schedule attached hereto as Exhibit C. On or before the dates that the Settlement Amount payments become due, Defendants shall issue individual checks in accordance with Exhibit C. To the extent that a payment date falls on a weekend or court holiday, the due date for the payment shall be the immediately following day that is not a weekend or court holiday. These checks shall be delivered to Laura E. Varela at the Washington Lawyers' Committee for Civil Rights and Urban Mfairs, II Dupont Circle, NW, Suite 400, Washington, D.C. 20036. All individual income tax obligations shall rest with the individual Plaintiffs.
3.4 Within fifteen (I5) days after payment of the full Settlement Amount, the Parties shall flle with the Court the fully executed Stipulated Order of Dismissal, attached hereto as Exhibit A.
3.5 Plaintiffs shall not issue press releases or hold news conferences about this action, or terms of settlement thereof, with any media outlets, although Plaintiffs and counsel for Plaintiffs may engage in ordinary and customary publishing about this action in newsletters, updates, and on the website of the Washington Lawyers' Committee for Civil Rights and Urban Affairs. In response to
4
40 11 07799v 1

Case 1:07-cv-00455-CCB Document 107 Filed 03/19/09 Page 5 of 7 Case 1:07-cv-00455-CCB Document 105-2 Filed 03/16/2009 Page 5 of 16
questions from any media sources, Plaintiffs and counsel for Plaintiffs shall direct all inquiries to public sources and public materials on file.
3.6 In the event that Defendants fail to make a payment when due, the entire Settlement
Amount less any payments previously made shall become immediately due and owing, and the fully executed Stipulated Final Judgment (attached hereto as Exhibit B) may be filed directly with the Court, which the Court shall enter immediately in favor of Plaintiffs and against Defendants in a sum equal to the entire Settlement Amount less any payments previously made, plus interest thereon at the federal post-judgment rate from the date of default until paid, plus costs associated with filing the Stipulated Final Judgment, plus reasonable attorneys' fees and collection expenses associated with execution of the Stipulated Final Judgment. Defendants waive the benefit of any statue, ordinance, or rule of Court conferring upon Defendants any right or privilege of exeTUption, appeal, stay of execution or supplementary proceedings, and any other relief from the enforcement of the Stipulated Final Judgment or proceedings related thereto.
IV. Releases 4. 1 Upon completion of the terms of this Consent Decree, and in consideration of the promises and covenants set forth herein, and for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Plaintiffs, on behalf of themselves and their respective predecessors, successors, assigns, affiliates, heirs, executors, administrators, parents, subsidiaries, partners, shareholders, principals, beneficiaries, trustees, officers, directors, servants, representatives, employees and agents, FULLY AND FOREVER RELEASE, ACQUIT AND DISCHARGE Defendants, as well as each of Defendant's respective predecessors, successors, assigns, affiliates, heirs, executors, administrators, parents, subsidiaries, partners, shareholders, principals, beneficiaries, trustees, officers,
5
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Case 1:07-cv-00455-CCB Document 107 Filed 03/19/09 Page 6 of 7 Case 1:07-cv-00455-CCB Document 105-2 Filed 03/16/2009 Page 6 of 16
directors, servants, representatives, employees and agents, from any and all legally waivable claims, liabilities, damages, demands, and causes of action or liabilities of any nature or kind, whether now known or unlmown, arising out of or in any way pertaining to wages claimed to be or actually owed prior to the date of execution of this Consent Decree, including but not limited to all claims that were or could have been asserted in this action. It is understood and agreed that this release shall be binding upon and inure to the benefit of the Parties and their respective predecessors, successors, assigns, affiliates, partners, shareholders, principals, beneficiaries, trustees, officers, directors, servants, representatives, employees and agents.
4.2 Upon completion of the terms of this Consent Decree, and in consideration of the promises and covenants set forth herein, and for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Defendants, on behalf of themselves and their respective predecessors, successors, assigns, affiliates, heirs, executors, administrators, parents, subsidiaries, partners, shareholders, principals, beneficiaries, trustees, officers, directors, servants, representatives, employees and agents, FULLY AND FOREVER RELEASE, ACQUIT AND DISCHARGE Plaintiffs, as well as each Plaintiff's respective predecessors, successors, assigns, affiliates, heirs, executors, administrators, parents, subsidiaries, partners, shareholders, principals, beneficiaries, trustees, officers, directors, servants, representatives, employees and agents from any and all legally waivable claims, liabilities, damages, demands, and causes of action or liabilities of any nature or kind, whether now known or unknown, arising out of or in any way pertaining to wages claimed to be or actually owed prior to the date of execution of this Consent Decree, including but not limited to all claims that were or could have been asserted in this action. It is understood and agreed that this release shall be binding upon and inure to the benefit of the Parties and their respective predecessors, successors, assigns, affiliates, partners,
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shareholders, principals, beneficiaries, trustees, officers, directors, servants, representatives, employees and agents.
V. Final Settlement 5. 1 Upon approval and entry of this Consent Decree and exhibits attached hereto, and upon the Parties ' completion of the terms herein, this Consent Decree shall constitute a final settlement of all claims in this action. SO ORDERED THIS
United States District Judge
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 Case 1:07-cv-00455-CCB Document 90 Filed 12/16/08 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

GIOVANNI (“HENRY”) MONTOYA, et al. :

:

v.

: CIVIL NO. CCB-07-455

:

S.C.C.P. PAINTING CONTRACTORS,

:

INC., et al.

...o0o...

MEMORANDUM

Now pending before this court are two motions for leave to file amended pleadings. The

named plaintiffs, on behalf of themselves and the conditionally-certified plaintiff class (together

“the plaintiffs”), seek leave to file an amended summons and complaint to correct a misnomer.1

Defendants S.C.C.P. Painting Contractors (“SCCP”) and Ascenzo Sulmonte (together “the

defendants”) seek leave to amend their answer to add two defenses. Also pending before this

court is the plaintiffs’ motion for partial summary judgment on (1) the issue of whether they

meet the definition of non-exempt employees under the Fair Labor Standards Act (“FLSA”) and

thus are entitled to its overtime protections, and (2) the defendants’ liability for failure to pay

overtime wages in violation of the FLSA. The parties have fully briefed the issues and no

hearing is necessary. For the reasons articulated below, the court will grant the plaintiffs’

motions for leave and partial summary judgment and will deny the defendants’ motion for leave.

1In their initial pleadings, the plaintiffs identified Giovanni Sulmonte as a defendant in this action. As discussed below, the plaintiffs will be granted leave to file an amended summons and complaint changing all references from Giovanni Sulmonte to Ascenzo Sulmonte. In light of this change, the court will reference the individual defendant in this action as Ascenzo Sulmonte.
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Background SCCP is a Maryland corporation that for the past four or five years has primarily provided painting services. Defendant Ascenzo Sulmonte (“Mr. Sulmonte”) is the founder, sole owner, and president of the corporation. The plaintiffs, all of whom are of Hispanic origin and native Spanish speakers, worked for SCCP as painters at some point since February 21, 2004. The plaintiffs were hired by Rene Aguilera (“Mr. Aguilera”), who is responsible for much of SCCP’s day-to-day operations and hires all of its workers. It is undisputed that SCCP did not require the plaintiffs to complete income tax-related paperwork, that SCCP never withheld taxes or made other payroll withholdings from their paychecks, and that SCCP never issued them IRS W-2 (employee compensation) or 1099 (nonemployee compensation) forms. According to the defendants, when Mr. Aguilera hired the plaintiffs, they negotiated to “be[] responsible for their own taxes due to their choice not to supply paperwork for such tax and employment purposes, and ... wanted to handle payments to them on a self-employed basis expecting to get a full dollar amount for the hours without [SCCP] touching their money for tax purposes.” (Defs.’ Opp. to Summ. J., Ex. A at 1.) The defendants further contend that they could not issue proper tax forms because the plaintiffs did not provide them with the requisite information such as full names, addresses, or social security numbers. During their tenure with SCCP, the plaintiffs worked at various job sites in Virginia, Maryland, and the District of Columbia, where they claim they often worked more than 40 hours per week but were not compensated at an overtime rate. It is undisputed that individuals who worked over 40 hours in a given workweek were not paid at one-and-a-half times their regular
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rate for the hours worked over 40. SCCP time sheets indicate that its painters frequently worked more than 40 hours per week and were compensated for all hours at their regular wage rate. (See Pls. Summ. J. Mem., Ex. 5.)
On February 21, 2007, the named plaintiffs, on behalf of themselves and a class of similarly situated SCCP painters, filed a complaint alleging, inter alia, that the defendants breached oral employment contracts by failing to fully compensate them for services rendered and failed to pay them overtime pay in violation of the Fair Labor Standards Act (“FLSA”). On February 26, 2008, the court granted the named plaintiffs’ motion for class certification. To date, 20 individuals, including the named plaintiffs, are part of the plaintiff class. On May 14, 2007, the defendants filed an answer to the complaint and on August 4, 2008, filed a motion seeking leave to amend the answer to add two defenses. On August 11, 2008, the plaintiffs filed a motion for leave to file an amended summons and complaint changing all references from “Giovanni Sulmonte” to “Ascenzo Sulmonte.” The plaintiffs filed their motion for partial summary judgment on August 29, 2008.
A. Plaintiffs’ Motion for Leave to File Amended Summons and Complaint The plaintiffs seek leave to file an amended summons and complaint to correct all
references from Giovanni (a.k.a. “John”) Sulmonte to Ascenzo (a.k.a. “John”) Sulmonte. Giovanni Sulmonte is Ascenzo Sulmonte’s father. The misnomer resulted, according to the plaintiffs, from the fact that the defendant is commonly known by the name “John,” which is not his given name. In trying to identify the intended defendant by his given name, the plaintiffs erroneously identified him by his father’s name. The defendants oppose the motion, contending
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that at this stage of the litigation amending the complaint will result in injustice by placing Ascenzo Sulmonte’s “individual rights, interests, welfare, and property ... at risk, [and] requiring careful individual review of the claims by himself and his chosen counsel.” (Defs.’ Opp. to Pls.’ Mot. for Leave at 3.)
Federal Rule of Civil Procedure 15(a)(2) provides that courts should freely allow parties leave to amend their pleadings “when justice so requires.” The Fourth Circuit has stated that “[u]nder modern practice, if the right party is before the court, although under a wrong name, an amendment to cure a misnomer of parties will be allowed.” United States v. A.H. Fischer Lumber Co., 162 F.2d 872, 874 (4th Cir. 1947) (internal quotation marks and citation omitted).
The defendants contend that Azcenzo Sulmonte is not involved in the litigation and was not individually served in this action. According to plaintiffs, however, Ascenzo Sulmonte has been involved in this case by, inter alia, being deposed, appearing at court proceedings, and signing interrogatory responses. During Ascenzo Sulmonte’s deposition, he testified that he is the sole officer of SCCP and that he is the founder and president of the business. Moreover, it is undisputed that service of process was made on an adult, “Mrs. Sulmonte, wife,” at Ascenzo Sulmonte’s home address in Thurmont, Maryland. Giovanni Sulmonte, on the other hand, has made no appearances nor actively participated in the litigation, and there has been no suggestion by either party that he is involved with SCCP.
Considering that the plaintiffs sued the defendants for alleged offenses occurring while they worked for SCCP, a company founded and run solely by Ascenzo Sulmonte; that the plaintiffs referred in their complaint to the individual defendant as “an officer of S.C.C.P.” and as being “highly involved in and/or responsible for overseeing the running of S.C.C.P.” (Compl.
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¶ 13); that the summons and complaint were served at Ascenzo Sulmonte’s home address; and that Ascenzo Sulmonte, not Giovanni Sulmonte, has been involved in discovery and other matters involving this litigation, the court is convinced that the right party, Ascenzo Sulmonte, is before the court. It is clear that the plaintiffs intended to sue Ascenzo Sulmonte and that no one has been misled by the misnomer of parties or will be prejudiced as a result. See Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 224-25 (4th Cir. 1999) (concluding failure to include “Inc.” in title of defendant corporation misled no one, noting that the pleading referred to specific corporation project and ensuing arbitration) (citing Barsten v. Dep’t of Interior, 896 F.2d 422, 423 (9th Cir.1990) (technical misnaming of defendant insignificant where complaint and accompanying documents make defendant’s identity clear)). The court, therefore, will grant the plaintiffs’ motion for leave to file an amended summons and complaint. The court also will dismiss Giovanni Sulmonte from this case.
B. Defendants’ Motion for Leave to Amend Answer Defendants seek leave to amend their answer to include two additional defenses: ELEVENTH DEFENSE If the Court were to f ind that Plaintiffs are employees, Defendant [SCCP] is due
restitution from Plaintiffs for mistaken overpayments to Plaintiffs constituting amounts it would have withheld and will thereby need to pay over to a ppropriate governmental authorities, to the extent the Plaintiffs failed to pay their taxes as independent contractors, which amounts must be offset against any am ount which m ay be awarded in favor of Plaintiffs, under the doctrines of setoff and recoupment.
TWELFTH DEFENSE [Seven] Plaintiffs ... m aterially breached their verbal agreem ents with Defendant [SCCP], which caused consequential and foreseeable damages to Defendant [SCCP], which amounts must be offset against any amounts which may be awarded in favor of Plaintiffs, under the doctrines of setoff and recoupment.
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(Defs.’ Mot. for Leave, Ex. A at 1-2.) The defendants describe both defenses as falling under the doctrines of setoff and
recoupment. “[R]ecoupment” means a diminution or a complete counterbalancing of the adversary’s claim based upon circum stances arising out of the sam e transaction on w hich the adversary’s claim is based; “setoff” means a diminution or a complete counterbalancing of the adversary’s claim based upon circumstances arising out of a transaction other than that on which the adversary’s claim is based; and “counterclaim” means the assertion of a right to have an affi rmative judgment against the adversary based upon a setoff or a recoupment.
Imbesi v. Carpenter Realty Corp., 744 A.2d 549, 552 (Md. 2000). Under Maryland law, recoupment may be raised as a defense rather than an affirmative counterclaim, see Smith v. Smith, 558 A.2d 798, 801 n. 2 (Md. Ct. Spec. App. 1989), while setoff must be pled as a counterclaim, see E.J. Smith Construction Co. v. Burton, 277 A.2d 84, 87 (Md. 1971). The plaintiffs contend that while the defendants have styled their proposed amendments as defenses, they are in fact counterclaims for setoff and must be pled as such in compliance with the requirements of the Federal Rules of Civil Procedure. The defendants argue that the amendments are properly pled as recoupment defenses and, therefore, need not be specially pled as counterclaims.
i. Eleventh Defense The plaintiffs claim that they are employees as defined under the FLSA and, as such, are
entitled to overtime wages, which SCCP failed to pay. The defendants now seek “restitution” for “mistaken overpayments” of wages that SCCP should have withheld for tax purposes, in the event the plaintiffs are deemed to be employees and failed to pay taxes as independent
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contractors. Whether called recoupment or setoff, a claim for such payments would be futile, as plaintiffs do not owe defendants monies which the defendants may have been obligated to pay but did not. Any necessary accounting for taxes that may be owed on any recovery can be done at the time of judgment.
Nor would it be in the interest of justice to allow the defendants to amend their answer in such a way. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend a pleading] when justice so requires.”) The defendants seek to recoup “mistaken overpayments” for unpaid taxes that they knew would not be paid. It is undisputed that SCCP did not require its workers to fill out proper tax forms and, despite claiming they were independent contractors, never sent them the appropriate 1099 tax forms. In light of their past conduct, the defendants’ present concern about complying with the “appropriate governmental authorities” seems disingenuous at best. Moreover, the record demonstrates that SCCP has no organized bookkeeping system; at certain, seemingly arbitrary, intervals SCCP disposed of papers listing its workers’ hours and wages. Thus, even assuming the defendants have some legal justification for seeking restitution for overpayments in the form of unpaid taxes, it is unclear how the defendants would go about calculating any alleged overpayments. Lastly, the defendants offer no explanation for the delay in adding this defense. The plaintiffs’ status under the FLSA has been at issue since the inception of the litigation, and SCCP’s failure to send its workers the proper tax forms belies any suggestion that the defendants did not know whether their workers were filing tax returns. Considering these factors, the equities do not favor permitting the defendants leave to amend their answer.
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ii. Twelfth Defense In their proposed twelfth defense, the defendants seek recoupment for alleged breaches
of oral agreements by seven plaintiffs. A recoupment is allowed as a defense in an action for breach of contract and the defendant is entitled to “a recoupment to the extent of his damages which were the certain result of the breach.” Smith, 558 A.2d at 805 (quoting Hammaker v. Schleigh, 147 A. 790, 797 (1929)). Here, however, the defendants provide no indication that their allegations of breached agreements flow from the same transactions underlying the plaintiffs’ breach of contract claims. The defendants do not identify the agreements at issue, the breaching conduct, or the resultant damages. Standing alone, then, the defendants’ breach of agreement allegations are not a recoupment defense, but at best a counterclaim that should have been pled as such.
Even assuming the defendants had properly pled this defense as a counterclaim for breach of contract, however, the claim is too vague to survive a motion to dismiss. The defendants merely recite the elements of a breach of contract claim by alleging that seven plaintiffs breached agreements that resulted in foreseeable damages. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (holding that to survive a Rule 12(b)(6) motion to dismiss, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”) (internal citations, quotation marks and alteration omitted). The court, therefore, will deny the defendants’ motion for leave to amend their answer. See United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (noting that while leave to amend motions “should be granted liberally” under Rule 15, such motions may be denied where
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the proposed amendment would be futile, including where it does not properly state a claim under Rule 12(b)(6)).
C. Plaintiffs’ Motion for Summary Judgment The plaintiffs seek summary judgment on the questions of whether they are covered
employees under the FLSA and, thus, are entitled to overtime wages, and whether the defendants are liable for their failure to pay these wages. The defendants maintains that material questions of fact exist as to whether the plaintiffs are self-employed workers not entitled to FLSA protections.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The Supreme Court has clarified this does not mean that any factual dispute will defeat the motion: “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
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The court must “view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness’ credibility,” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the court also must abide by the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Under the FLSA, employers must pay their covered employees an overtime rate of one and one-half times the employees’ regular rate for each hour worked in excess of forty hours per work week. 29 U.S.C. § 207(a)(1). The determination of whether an individual is a covered employee is a legal question under the FLSA, and courts look to the underlying “economic reality” of the relationship between the worker and the putative employer. Schultz v. Capital Int’l Sec. Inc., 466 F.3d 298, 304 (4th Cir. 2006). “The focal point is whether the worker is economically dependent on the business to which he renders service or is, as a matter of economic reality, in business for himself.” Id. (internal quotation marks and alteration omitted).
i. Plaintiffs’ “Independent Contractor” Label The gravamen of the defendants’ argument is that the plaintiffs are not “employees”
because they deliberately sought not to be in order to hide their undocumented work status. According to the defendants, the plaintiffs individually negotiated to be independent contractors, bargained not to be employees of SCCP, and declined to fill out paperwork to become employees. These negotiations, the defendants contend, evidence that the plaintiffs
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“recognize they are not permitted to be employees for wages and deliberately steered away
from any such work relationship.” (Defs.’ Opp. to Summ. J. at 16.)2
While the defendants question whether the plaintiffs’ immigration status prevents them
from being lawfully employed under federal law, they stop short of contending that an unlawful
work status alone would exempt the plaintiffs from FLSA coverage. Federal courts have
consistently recognized that the broad sweep of the FLSA encompasses undocumented workers.
See, e.g., Patel v. Quality Inn S., 846 F.2d 700, 705 (11th Cir. 1988); In re Reyes, 814 F.2d 168,
170 (5th Cir. 1987).3 Instead, the defendants contend that the plaintiffs’ “negotiating” to be paid
as independent contractors – specifically, by failing to fill out tax forms or request W-2 forms –
2The defendants suggest that beyond being impermissible, the plaintiffs’ employment was “impossible” under federal law. (Defs.’ Opp. to Summ. J. at 5 n.3 (citing Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations Bd., 535 U.S. 137, 148 (2002).) A more thorough reading of Hoffman, however, reveals that the Supreme Court was referring to the impossibility of an undocumented alien obtaining employment “without some party directly contravening explicit congressional policies.” Id. at 148. While the Immigration Reform and Control Act of 1986 (“IRCA”) makes the employment of an undocumented worker unlawful, it does not render such employment impossible.
3The defendants suggest that the plaintiffs may not be eligible to pursue overtime wages, if they are undocumented workers, under the Supreme Court’s holding in Hoffman, 535 U.S. at 151, that illegal aliens were not entitled to backpay. The Court concluded that awarding backpay “unduly trench[ed] upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA.” Id. Lower courts have distinguished the holding in Hoffman, however, from cases where, as here, employees sought past wages for work actually performed as opposed to backpay. See Flores v. Amigon, 233 F.Supp.2d 462, 463-64 (E.D.N.Y. 2002); Zeng Liu v. Donna Karan Int’l, Inc., 207 F.Supp.2d 191, 192 (S.D.N.Y. 2002). In Flores, the district court noted that the immigration policies at issue in Hoffman had less application and might be undermined where a worker sought wages for work already performed. 233 F.Supp.2d at 464 (“If employers know that they will ... be required to pay [undocumented workers] at the same rates as legal workers for work actually performed, there are virtually no incentives left for an employer to hire an undocumented alien in the first instance.”); see also Patel, 846 F.2d at 704 (noting, in the context of IRCA’s underlying policy goals, that “[i]f the FLSA did not cover undocumented aliens, employers wound have an incentive to hire them”).
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is definitive proof of their non-employee status. Analyzed outside the context of the underlying immigration issues, the defendants simply argue that because the workers deliberately chose not to be employees, regardless of the work they performed or their relationship with SCCP, the court should not afford them employee protections. As the plaintiffs correctly assert, however, neither the subjective intent of the worker in forming the employment relationship nor the label affixed by the putative employer controls the question whether a worker is an employee under the FLSA.
In Tony and Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290 (1985), the Supreme Court concluded that, although certain workers considered themselves to be volunteers, as opposed to employees, such views were not dispositive, rather “[t]he test of employment under the [FLSA] is one of ‘economic reality.’” Id. at 301. In the Court’s view, “the purposes of the Act require that it be applied even to those who would decline its protections .... [otherwise] employers might be able to use superior bargaining power to coerce employees ... to waive their protections under the Act.” Id. at 302. Similarly, the mere fact that workers are labeled “independent contractors” does not negate the application of the economic realities test. See Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947) (“Where the work done, in its essence, follows the usual path of an employee, putting on an ‘independent contractor’ label does not take the worker from the protection of the [FLSA].”); see also Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 755 (9th Cir. 1979) (“[T]he subjective intent of the parties to a labor contract cannot override the economic realities” of their relationship); Heath v. Perdue Farms, Inc., 87 F.Supp.2d 452, 457 (D. Md. 2000) (quoting Rutherford for the proposition that “[c]ourts look not to the label, but to the underlying ‘economic reality’ of the
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relationship” in determining whether a worker is an independent contractor or employee under the FLSA).
The defendants’ attempt to distinguish the present case from Alamo is unavailing. They contend that Alamo involved the exploitation of “drug addicts” and “derelicts,” while these plaintiffs deliberately chose not to be employees by seeking payment as self-employed workers. As discussed above, however, courts look beyond the parties’ subjective intent to determine the economic reality of the employment relationship.
ii. Economic Realities Test Courts have established a six-factor test to determine whether a worker is an employee
or an independent contractor, based on “economic reality.” These factors, derived from United States v. Silk, 331 U.S. 704 (1947), are:
(1) the degree of control that the putativeemployer has over the manner in which the work is performed; (2) the worker’s opportunitiesfor profit or loss dependent on his managerial skill; (3) the worker’s investment in equipment or material, or his employment of other workers; (4) the degree of skill required for the work; (5) the permanence of the working relationship; and (6) the degree to which the services rendered are an integral part of the putative employer’s business.
Schultz, 466 F.3d at 304-05. No single factor is dispositive, as “the test is designed to capture the economic realities of the relationship between the worker and putative employer.” Id. at 305.
1. Control The first Silk factor is the degree of control that SCCP had over the manner in which the
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plaintiffs performed their work. Evidence in the record demonstrates the following elements of SCCP’s control over the plaintiffs. SCCP directed plaintiffs to particular job sites in Virginia, Maryland, and the District of Columbia, and Mr. Aguilera rotated among these job sites, providing supervision and instruction of foremen and painters. (See Pls.’ Summ. J. Mem., Ex. 4 at 18-19, 86-90.) Additionally, Mr. Sulmonte provided instructions for the painters in English that Mr. Aguilera would translate orally in Spanish. (Id., Ex. 1 at 36-37, 199-200.) Instructions included which rooms should be painted and in what manner they should be painted (i.e., which paint to use and how many coats to apply). (See id., Exs. 9, 10.) SCCP set the workers’ schedules according to project deadlines; trained inexperienced workers on the job; and required all workers, whether they were paid hourly or on salary, to submit weekly time sheets showing the number of hours worked each day in order to be paid. (Id., Ex. 4 at 71-73, 81.) At all times, SCCP retained the right to discipline or terminate its workers. (Id. at 92-93.)
Where putative employers provide specific direction for how workers, particularly lowskilled workers, are to perform their jobs, courts have weighed the control factor in favor of employee status. Compare Heath, 87 F.Supp.2d at 457-58 (favoring employee status where employer published a training manual outlining all aspects of the work to be done by chicken catchers, and crew leaders provided continual on-site feedback) and Schultz, 466 F.3d at 307 (favoring employee status where a standard operating procedure governed how security guards were to carry out their duties) with Herman v. Mid-Atlantic Installation Servs., Inc., 164 F.Supp.2d 667, 672 (D. Md. 2000) (favoring independent contractor status where workers’ compliance with technical cable installation specifications was consistent with role of contractor hired to perform highly technical duties). Moreover, the control element may be
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satisfied where the putative employer sets the plaintiffs’ schedules, directs them to particular work sites, requires them to fill out time sheets, and can fire them at will. See Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 769 (D. Md. 2008) (alleging all of these factors).
SCCP contends that it did not exercise control over the painters because they coordinated their work with clients and took direction from the clients, as opposed to SCCP. Even if the painters did coordinate with and take direction from the clients at the job sites, that does not negate the amount of control that SCCP retained over them, which is the relevant inquiry in this analysis. See Schultz, 466 F.3d at 305 (“[T]he issue is not the degree of control that an alleged employer has over the manner in which the work is performed in comparison to that of another employer. Rather, it is the degree of control that the alleged employer has in comparison to the control exerted by the worker.”) As discussed above, SCCP exerted a significant degree of control over the manner in which the plaintiffs performed their jobs.
The defendants also contend that SCCP did not control the manner in which the plaintiffs applied paint to the walls, relying on the fact that the painters supplied their own rollers and brushes. There is no doubt that the painters exercised some independent judgment as to how they physically applied paint to the walls, however, as a general rule, they did not control the manner in which they performed their duties. As noted above, SCCP controlled the type of paint used and the number of coats applied, often hired inexperienced painters and trained them on the job, and provided regular feedback on the painters’ performance at the job sites. These actions suggest that SCCP exercised a significant amount of control over the manner in which the painters performed their duties, even though the painters were able to make some independent choices. See id. at 307 (finding control element satisfied where
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standard operating procedure dictated most tasks performed by security agents even though they occasionally exercised their own judgment in assessing security threats). Moreover, the plaintiffs’ alleged independent responsibilities fall short of what courts have found to indicate a lack of control by the putative employer. See Herman, 164 F.Supp.2d at 674 (finding lack of control where workers had to assume responsibility for obtaining proper qualifications; assure compliance with safety standards; pay all required taxes; and hire, train and supervise their own helpers).
2. Opportunities for Profit or Loss Dependent on Managerial Skill SCCP contends that painters had opportunities for profit both because they contracted
for higher amounts based on their managerial skill and because they could leave SCCP at any time to earn greater profits elsewhere. The plaintiffs argue that SCCP set their schedules and they had no opportunity to increase their profits by working more efficiently. Where the putative employee’s work is, by its nature, time oriented, not project oriented, courts have weighed the second Silk factor in favor of employee status. In Schultz, for example, the Fourth Circuit reasoned that security agents, who were paid at a set rate for each shift and whose work schedules were dictated by the employer’s needs, could not work more efficiently in order to perform additional paid work. 466 F.3d at 308; see also Heath, 87 F.Supp.2d at 458 (noting that “because the number of chickens to be caught is limited by Perdue, there is no occasion for extra pay or profit”). In Herman, on the other hand, the court emphasized the cable installers’ potential for earning greater profits by improving their technique so as to service more customers faster. 164 F.Supp.2d at 674. Here, the painters are more akin to the chicken catchers
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in Heath and the security agents in Schultz than to the cable installers in Herman. SCCP paid the painters a set salary or hourly rate and dictated their schedules, leaving no opportunity for the painters to earn more by working more efficiently. The fact that some painters earned a higher set rate than others, based on their level of skill, does not change the analysis. Once on the job, each painter was dependent on SCCP’s scheduling to earn a living, and SCCP offers no evidence that painters could increase their profits by working more efficiently.
3. Investment in Equipment and Employment of Others It is undisputed that the painters purchased their own paint brushes and rollers and
SCCP supplied all other equipment, including paint, drop cloths, paint sprayers, stepladders, extension ladders, painting tape, sandpaper, paper, company t-shirts, and protective equipment such as hard hats and harnesses. (See Pls.’ Summ. J. Mem., Ex. 4 at 82-83.) In Heath, the putative employer provided all major equipment, while the crew leaders, found to be employees, purchased their own computers for bookkeeping and protective gloves and masks for some of the catchers. The court concluded that “[t]he crew leaders’ relative lack of capital investment in equipment is perhaps one of the strongest indicators that they are employees and not independent contractors.” Heath, 87 F.Supp.2d at 458; see also Herman, 164 F.Supp.2d at 675 (weighing factor strongly in favor of independent contractor status where installers made considerable investments in their own vehicles, specialty tools, and insurance premiums). While the painters did purchase their own brushes and rollers, this investment was minimal relative to SCCP’s capital investment and is highly analogous to the crew leaders’ investments in Heath. The painters were heavily dependent on SCCP to provide the necessary materials for
17

Case 1:07-cv-00455-CCB Document 90 Filed 12/16/08 Page 18 of 20
professional painting. Moreover, while some painters referred new workers to SCCP, it is undisputed that SCCP controlled all personnel decisions, further distinguishing them from the cable installers in Herman who had the right to hire helpers or subcontractors. See Herman, 164 F.Supp.2d at 674.
4. Degree of Skill Required This factor requires little consideration, as Mr. Sulmonte himself acknowledged that
painting “is not a high-skilled job” (see Pls. Summ. J. Mem., Ex. 1 at 103), and it is undisputed that SCCP hired painters with no experience. While the defendants suggests that some of the plaintiffs managed other painters and “interface[d] with other superintendents” at the job sites (see Defs. Opp. to Summ. J. at 12), this type of generalized managerial skill does not connote independent contractor status. See Heath, 87 F.Supp.2d at 458 (noting that while the crew leaders’ position required generalized supervision and management skills, that did not render them independent contractors). The defendants’ further contention that having to comply with job specifications requires “knowledge of method” (see Defs. Opp. to Summ. J. at 12) also fails to change the outcome. Every task, whether skilled or unskilled, requires some degree of knowledge as to how to perform it and an ability to follow directions. Cf. id. at 458 (noting that a chicken catcher’s ability to become faster with experience “is true of most repetitive tasks, skilled or unskilled”).
5. Permanence of the Working Relationship The defendants contend that it hired the plaintiffs temporarily to work on a particular job
18

Case 1:07-cv-00455-CCB Document 90 Filed 12/16/08 Page 19 of 20
site.4 The plaintiffs, however, have submitted evidence in the form of declarations and time sheets indicating that painters worked full time at multiple sites for extended periods of time. (See Pls.’ Summ. J. Mem., Exs. 3, 5.) The time sheets cover various two-week time periods extending for approximately one year, and indicate that several of the plaintiffs worked consistently for SCCP throughout those periods. For example, Elmar Reyes worked an average of 49 hours per week, Gustavo Reyes worked an average of 47 hours per week, and Elmo Chavarria worked an average of 41 hours per week.5 (Pls.’ Summ. J. Mem., Ex. 5.) In light of this evidence, this factor weighs in favor of the plaintiffs. See Quinteros, 532 F.Supp.2d at 77071 (relying on check payment stubs as evidence that plaintiffs had an exclusive, continuous relationship with the putative employer).
6. Integral Part of the Business The defendants contend that because the painters were not hired for permanent work and
the company could survive without them, they were not an integral part of the business. As discussed above, the plaintiffs have successfully demonstrated that they had some degree of permanence with SCCP. Moreover, this factor does not turn on whether the individual worker was integral to the business; rather, it depends on whether the service the worker performed was
4The court notes that in a previous deposition, Mr. Aguilera testified that SCCP began to put painters on salary in order to “have a solid group of men working for [SCCP] and ... make it attractive for the men to stay.” (Pls.’ Summ. J. Mem., Ex. 4 at 77.)
5The seven time sheets from which the averages are calculated are dated December 1, 2006; April 6, 2007; July 13, 2007; August 10, 2007; October 5, 2007; October 19, 2007; and November 2, 2007. Older time sheets are unavailable due to SCCP’s policy of periodically throwing away time sheets, the latest such purge occurring approximately 10 months prior to the discovery period. (See Pls.’ Summ. J. Mem., Ex. 1 at 55-56.)
19

Case 1:07-cv-00455-CCB Document 90 Filed 12/16/08 Page 20 of 20
integral to the business. In Heath, for example, the court concluded that the chicken catchers’ function, as opposed to the individual workers, was an integral part of the business of processing chickens. 87 F.Supp.2d at 459. Here, the plaintiffs are painters and the putative employer a painting contractor. Certainly painters’ work is as integral to the business of painting as chicken catchers’ work is to the business of processing chickens.
Based on the analysis of the Silk factors, the court concludes that the plaintiffs were covered FLSA employees when they worked for SCCP. As a result, SCCP is liable to the plaintiffs for any underpayment of overtime wages.6
For the foregoing reasons, the court will grant the plaintiffs’ motions for leave to file an amended summons and complaint and for partial summary judgment and will deny the defendants’ motion for leave to amend their answer. A separate Order follows.

December 16, 2008 Date

/s/ Catherine C. Blake United States District Judge

6The amounts, if any, due each plaintiff remain to be determined. 20

 
 Case: 1:07-cv-00455-CCB As of: 07/17/2012 03:50 PM EDT 1 of 11
CASREF,CLOSED,MAG−S
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:07−cv−00455−CCB

Montoya et al v. S.C.C.P. Painting Contractors, Inc. et al Assigned to: Judge Catherine C. Blake Referred to: Magistrate Judge Charles B. Day (Settlement) Cause: 29:201 Fair Labor Standards Act
Plaintiff

Date Filed: 02/21/2007 Date Terminated: 03/19/2009 Jury Demand: Both Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question

Giovanni (Henry) Montoya

represented by Anne Elizabeth Langford 2801 John Marshall Drive Arlington, VA 22207 617−970−7356 Email: anne.langford@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J Cynamon Pillsbury Winthrop Shaw Pittman LLP 2300 N St NW Washington, DC 20037 12026638000 Fax: 12026638007 Email: david.cynamon@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Elena Varela Washington Lawyers Committee for Civil Rights and Urban Affa 11 Dupont Circle NW Ste 400 Washington, DC 20036 12023191000 Fax: 12023191010 Email: laura_varela@washlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan E Huhta Washington Lawyers Committee for Civil Rights and Urban Aff 11 Dupont Circle NW Ste 400 Washington, DC 20036 12023191000 Fax: 12023191010 Email: sue_huhta@washlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Alexander Figueroa

represented by Anne Elizabeth Langford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J Cynamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00455-CCB As of: 07/17/2012 03:50 PM EDT 2 of 11

Laura Elena Varela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan E Huhta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Manuel Carrera

represented by Anne Elizabeth Langford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J Cynamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Elena Varela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan E Huhta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ivan Aplicano On behalf of themselves and all others similarly situated

represented by Anne Elizabeth Langford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J Cynamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Elena Varela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan E Huhta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Victor Samuel Rodas

represented by Anne Elizabeth Langford (See above for address) ATTORNEY TO BE NOTICED

David J Cynamon (See above for address) ATTORNEY TO BE NOTICED

Laura Elena Varela (See above for address)

Case: 1:07-cv-00455-CCB As of: 07/17/2012 03:50 PM EDT 3 of 11

ATTORNEY TO BE NOTICED

Susan E Huhta (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Melvin Cifuentes

represented by Anne Elizabeth Langford (See above for address) ATTORNEY TO BE NOTICED

David J Cynamon (See above for address) ATTORNEY TO BE NOTICED

Laura Elena Varela (See above for address) ATTORNEY TO BE NOTICED

Susan E Huhta (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gustavo Reyes

represented by Anne Elizabeth Langford (See above for address) ATTORNEY TO BE NOTICED

David J Cynamon (See above for address) ATTORNEY TO BE NOTICED

Laura Elena Varela (See above for address) ATTORNEY TO BE NOTICED

Susan E Huhta (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Elmo Mauricio Chavarria

represented by Anne Elizabeth Langford (See above for address) ATTORNEY TO BE NOTICED

David J Cynamon (See above for address) ATTORNEY TO BE NOTICED

Laura Elena Varela (See above for address) ATTORNEY TO BE NOTICED

Susan E Huhta (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Elmar Reyes

represented by Anne Elizabeth Langford (See above for address) ATTORNEY TO BE NOTICED

Case: 1:07-cv-00455-CCB As of: 07/17/2012 03:50 PM EDT 4 of 11
David J Cynamon (See above for address) ATTORNEY TO BE NOTICED
Laura Elena Varela (See above for address) ATTORNEY TO BE NOTICED
Susan E Huhta (See above for address) ATTORNEY TO BE NOTICED

V. Defendant S.C.C.P. Painting Contractors, Inc.
Defendant Giovanni Sulmonte Individually and doing business as S.C.C.P. Painting Contractors, Inc. TERMINATED: 12/16/2008 also known as (John) TERMINATED: 12/16/2008 Defendant Ascenzo Sulmonte also known as . John

represented by G Randall Whittenberger Miles and Stockbridge PC 30 W Patrick St Frederick, MD 21701−1487 13016625155 Fax: 13016623647 Email: rwhittenberger@milesstockbridge.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by G Randall Whittenberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by G Randall Whittenberger (See above for address) LEAD ATTORNEY

Date Filed 02/21/2007
02/21/2007 02/22/2007 02/22/2007 03/26/2007
03/26/2007

# Docket Text
1 COMPLAINT with Exhibit 1 against S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte (Filing fee $ 350, Receipt Number 84637008519), filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Attachments: # 1 Civil Cover Sheet)(elt, Deputy Clerk) (Entered: 02/22/2007)
Jury Trial Demand by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (elt, Deputy Clerk) (Entered: 02/22/2007)
2 Correspondence re: CM/ECF warning letter to counsel. (elt, Deputy Clerk) (Entered: 02/22/2007)
3 Summons Issued 20 days as to S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (elt, Deputy Clerk) (Entered: 02/22/2007)
4 (FILED IN ERROR) ANSWER to Complaint by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Attachments: # 1 Memo in Support, proposed Order, Request for Hearing)(Whittenberger, G) Modified on 3/26/2007 (jnl, Deputy Clerk). (Entered: 03/26/2007)
5 MOTION for More Definite Statement by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. Responses due by 4/12/2007 (Attachments: # 1 Memo in Support# 2 Text of Proposed Order # 3 Request for Hearing# 4 Certificate of

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03/26/2007 03/28/2007
03/28/2007
03/29/2007 04/12/2007 04/12/2007
04/17/2007 04/23/2007 04/26/2007 05/03/2007 05/14/2007 05/21/2007
05/22/2007 08/06/2007
08/20/2007 08/24/2007

Service# 5 (Filed in error) Disclosure of Corporate Interest)(Whittenberger, G) Modified on 3/27/2007 (jnl, Deputy Clerk). (Entered: 03/26/2007)
6 Local Rule 103.3 Disclosure Statement by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Whittenberger, G) (Entered: 03/26/2007)
7 AFFIDAVIT of Service for Summons and Complaint and Exhibit served on SCCP Painting Contractors, Inc. on March 8, 2007, filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Cynamon, David) (Entered: 03/28/2007)
8 AFFIDAVIT of Service for Summons and Complaint and Exhibit served on Giovanni (a.k.a. "John") Sulmonte on March 6, 2007, filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Cynamon, David) (Entered: 03/28/2007)
Case reassigned to Judge Catherine C. Blake. Judge Richard D Bennett no longer assigned to the case. (cag, Deputy Clerk) (Entered: 03/29/2007)
9 NOTICE of Appearance by Anne Elizabeth Langford on behalf of all plaintiffs (Langford, Anne) (Entered: 04/12/2007)
10 RESPONSE in Opposition re 5 MOTION for More Definite Statement filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano.Replies due by 4/26/2007. (Attachments: # 1 Memorandum in Support of Opposition to Motion# 2 Text of Proposed Order)(Langford, Anne) (Entered: 04/12/2007)
11 Miscellaneous Correspondence setting a conference call to discuss attached proposed schedule. (Blake, Catherine) (Entered: 04/17/2007)
12 REPLY to Response to Motion re 5 MOTION for More Definite Statement Reply to Opposition to Motion for More Definite Statement filed by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Whittenberger, G) (Entered: 04/23/2007)
13 NOTICE of Appearance by Laura Elena Varela on behalf of all plaintiffs (Varela, Laura) (Entered: 04/26/2007)
14 ORDER denying 5 Motion of S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte for More Definite Statement. Signed by Judge Catherine C. Blake on 5/3/07. (jnl, Deputy Clerk) (Entered: 05/03/2007)
15 ANSWER to Complaint by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte.(Whittenberger, G) (Entered: 05/14/2007)
16 NOTICE by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte, Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano re 14 Order on Motion for More Definite Statement (Joint Proposed Schedule for Initial Discovery and for Filing of Class Certification Motion per Court's 5/3/07 Order (Langford, Anne) (Entered: 05/21/2007)
17 PAPERLESS ORDER APPROVING 16 Joint Proposed Schedule for Initial Discovery and for Filing of Class Certification Motion. Signed by Judge Catherine C. Blake on May 22, 2007. (Blake, Catherine) (Entered: 05/22/2007)
18 NOTICE of service of motion to compel discovery by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano (Attachments: # 1 Motion to Compel# 2 Memorandum in Support of Motion to Compel# 3 Text of Proposed Order # 4 Exhibit 1)(Langford, Anne) (Entered: 08/06/2007)
19 NOTICE of service of response to motion to compel discovery by S.C.C.P. Painting Contractors, Inc. (Attachments: # 1 # 2 # 3)(Whittenberger, G) (Entered: 08/20/2007)
20 MOTION for Extension of Time by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. Responses due by 9/10/2007 (Attachments: # 1 Memorandum in Support of Motion# 2 Text of Proposed Order)(Langford, Anne) (Entered: 08/24/2007)

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08/31/2007

21 NOTICE of service of motion to compel discovery by S.C.C.P. Painting Contractors, Inc. Motion to Compel, Memorandum in Support, Exhibit, proposed Order (Attachments: # 1 # 2 # 3 # 4)(Whittenberger, G) (Entered: 08/31/2007)

09/04/2007

22 NOTICE of service of reply to response to motion to compel discovery by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano (Attachments: # 1 Reply to Response to Motion to Compel)(Langford, Anne) (Entered: 09/04/2007)

09/05/2007

23 Miscellaneous Correspondence to counsel regarding discovery. (Blake, Catherine) (Entered: 09/05/2007)

09/17/2007

24 NOTICE of service of response to motion to compel discovery by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano (Attachments: # 1 Response to Motion to Compel# 2 Text of Proposed Order)(Langford, Anne) (Entered: 09/17/2007)

09/20/2007

25 ORDER REFERRING CASE to Magistrate Judge Susan K. Gauvey for discovery. Signed by Judge Catherine C. Blake on 9/20/07. (jnl, Deputy Clerk) (Entered: 09/20/2007)

09/28/2007

26 MOTION to Compel Discovery by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. Responses due by 10/15/2007 (Attachments: # 1 Certificate of Compliance with Rule 104.7)(Langford, Anne) (Entered: 09/28/2007)

10/04/2007

27 MEMORANDUM to counsel scheduling date for telephone hearing. Signed by Judge Susan K. Gauvey on 10/4/07. (jnl, Deputy Clerk) (Entered: 10/04/2007)

10/04/2007

28 ORDER granting 20 Motion of plaintiff for Extension of Time. Signed by Judge Catherine C. Blake on 10/4/07. (jnl, Deputy Clerk) (Entered: 10/04/2007)

10/15/2007

29 RESPONSE in Opposition re 26 MOTION to Compel Discovery filed by S.C.C.P. Painting Contractors, Inc..Replies due by 10/29/2007. (Whittenberger, G) (Entered: 10/15/2007)

10/22/2007

30 ORDER directing counsel to submit supplemental memoranda on the motion to compel by 10/24/07. Signed by Judge Susan K. Gauvey on 10/22/07. (jnl, Deputy Clerk) (Entered: 10/22/2007)

10/24/2007

31 Supplemental to Motion to Compel (Supplemental Brief in Support of Plaintiffs' Motion to Compel). (Langford, Anne) (Entered: 10/24/2007)

10/24/2007

32 Supplemental to Memo in Support of its Motion to Compel Discovery (Pursuant to 10/22/07 Judge Gauvey Order). (Whittenberger, G) (Entered: 10/24/2007)

10/24/2007

33 Local Rule 104.7 Certificate. (Whittenberger, G) (Entered: 10/24/2007)

10/24/2007

34 Local Rule 104.7 Statement (Revised). (Langford, Anne) (Entered: 10/24/2007)

10/25/2007

Telephone Motions Hearing held on 10/25/2007 held before Judge Susan K. Gauvey. (jnl, Deputy Clerk) (Entered: 10/26/2007)

12/10/2007

35 MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. Responses due by 12/27/2007 (Attachments: # 1 Memorandum in Support of Motion# 2 Text of Proposed Order # 3 Declaration of Laura E. Varela# 4 Exhibit A# 5 Exhibit B# 6 Exhibit C# 7 Exhibit D# 8 Exhibit E# 9 Exhibit F# 10 Exhibit G# 11 Exhibit H# 12 Exhibit I# 13 Exhibit J# 14 Exhibit K# 15 Exhibit L# 16 Exhibit M# 17 Exhibit N# 18 Exhibit O# 19 Exhibit P# 20 Exhibit Q# 21 Exhibit R# 22 Exhibit S# 23 Exhibit T# 24 Exhibit U)(Langford, Anne) (Entered: 12/10/2007)

12/21/2007

36 STIPULATION re 35 MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) OF EXTENSION OF TIME TO RESPOND by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte.

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12/21/2007 12/21/2007 12/27/2007 12/28/2007 01/03/2008 01/04/2008 01/10/2008 01/11/2008
01/11/2008
01/15/2008 02/01/2008 02/07/2008
02/20/2008

(Whittenberger, G) (Entered: 12/21/2007)
37 PAPERLESS ORDER APPROVING 36 Stipulation. Signed by Judge Catherine C. Blake on December 21, 2007. (Blake, Catherine) (Entered: 12/21/2007)
38 ORDER granting in part and denying in part 26 Motion of plaintiffs to Compel discovery. Signed by Judge Susan K. Gauvey on 12/21/07. (jnl, Deputy Clerk) (Entered: 12/21/2007)
39 MOTION to Amend/Correct 38 Order on Motion to Compel by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. Responses due by 1/14/2008 (Varela, Laura) (Entered: 12/27/2007)
40 RESPONSE in Opposition re 35 MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) filed by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. Replies due by 1/11/2008. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Text of Proposed Order)(Whittenberger, G) Modified on 1/2/2008 (hml, Deputy Clerk). (Entered: 12/28/2007)
41 PAPERLESS Correspondence to counsel: Please note the proper case number on all filings should be as follows: CCB−07−455. The initials RDB should not be used. This case was reassigned to Judge Blake in March 2007. Thank you. (Blake, Catherine) (Entered: 01/03/2008)
42 PAPERLESS ORDER granting 39 Motion to Amend/Correct − Given that discovery is now limited to class certification issues, plaintiff is not required to answer interrogatory no. 7 at this time. Signed by Magistrate Judge Susan K. Gauvey on 1/4/08. (Gauvey, Susan) (Entered: 01/04/2008)
43 AFFIDAVIT re 40 Response in Opposition to Motion, OF RENE AGUILERA by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Whittenberger, G) (Entered: 01/10/2008)
44 Request for Hearing re 35 MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery), 40 Response in Opposition to Motion,. (Whittenberger, G) (Entered: 01/11/2008)
45 REPLY to Response to Motion re 35 MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice, and for Certain Discovery) filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Attachments: # 1 Exhibit 1 −− 30(b)(6) Deposition Transcript Excerpts, # 2 Exhibit 2 −− Employee Notice)(Langford, Anne) (Entered: 01/11/2008)
46 COVER LETTER ORDER : attached is a Memorandum Opinion that is being filed and submitted for publishing today. Signed by Magistrate Judge Susan K. Gauvey on 1/14/08. (Attachments: # 1 Memorandum Opinion)(slf, Deputy Clerk) (Entered: 01/15/2008)
47 NOTICE of Acceptance with Offer of Judgment by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano (Attachments: # 1 Exhibit A −− Rule 68 Offer, # 2 Exhibit B −− Acceptance of Rule 68 Offer)(Langford, Anne) (Entered: 02/01/2008)
48 Motion Hearing held on 2/7/2008 re 35 MOTION to Certify Class (FLSA Conditional Class Certification, Issuance of Notice filed by Ivan Aplicano, Manuel Carrera, Alexander Figueroa, Giovanni (Henry) Montoya; Oral argument of counsel; Case −"Held Sub−Curia"−, for reasons stated in open Court, held before Judge Catherine C. Blake. (Court Reporter G. Simpkins.) (rhl, Deputy Clerk) (Entered: 02/08/2008)
49 ORDER REFERRING CASE to Magistrate Judge Charles B. Day for Settlement. Signed by Judge Catherine C. Blake on 2/20/08. (pkf, Deputy Clerk) (Entered:

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02/25/2008 02/26/2008 02/26/2008
03/03/2008 03/14/2008 03/21/2008 03/24/2008 04/21/2008 04/22/2008 04/24/2008
04/25/2008 05/08/2008
05/15/2008
05/19/2008 05/21/2008 05/27/2008 05/29/2008

02/20/2008)
50 Correspondence re: scheduling settlement conference. Reply required. (bab, Chambers) (Entered: 02/25/2008)
51 MEMORANDUM. Signed by Judge Catherine C. Blake on 2/26/08. (jnl, Deputy Clerk) (Entered: 02/26/2008)
52 ORDER granting 35 Motion of plaintiffs for Conditional Class Certification; approving plaintiffs proposed Alternative Notice Plan; directing status report is due 3/21/08. Signed by Judge Catherine C. Blake on 2/26/08. (jnl, Deputy Clerk) (Entered: 02/26/2008)
53 ORDER scheduling settlement conference. Signed by Magistrate Judge Charles B. Day on 3/3/08. (jnl, Deputy Clerk) (Entered: 03/03/2008)
54 (FILED IN ERROR) STIPULATION for Extension of Time by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Whittenberger, G) Modified on 3/14/2008 (jnl, Deputy Clerk). (Entered: 03/14/2008)
55 STATUS REPORT Regarding Alternative Notice Efforts by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Langford, Anne) (Entered: 03/21/2008)
56 STATUS REPORT by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Whittenberger, G) (Entered: 03/24/2008)
57 Correspondence re: rescheduling settlement conference. Reply required. (bab, Chambers) (Entered: 04/21/2008)
58 Correspondence confirming the rescheduled settlement conference. (bab, Chambers) (Entered: 04/22/2008)
59 MOTION for Order to Show Cause , for Extension of Opt−In Period, and for Other Related Relief by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano Responses due by 5/12/2008 (Attachments: # 1 Memorandum in Support of Motion, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G)(Langford, Anne) (Entered: 04/24/2008)
60 Local Rule 104.7 Certificate. (Attachments: # 1 Plaintiffs' Motion to Compel, # 2 Defendants' Opposition, # 3 Plaintiffs' Reply)(Langford, Anne) (Entered: 04/25/2008)
61 RESPONSE in Opposition re 59 MOTION for Order to Show Cause , for Extension of Opt−In Period, and for Other Related Relief filed by S.C.C.P. Painting Contractors, Inc.. Replies due by 5/22/2008. (Attachments: # 1 Text of Proposed Order)(Whittenberger, G) (Entered: 05/08/2008)
62 REPLY to Response to Motion re 59 MOTION for Order to Show Cause , for Extension of Opt−In Period, and for Other Related Relief filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Langford, Anne) (Entered: 05/15/2008)
63 Supplemental to 61 Response in Opposition to Motion, filed by S.C.C.P. Painting Contractors, Inc.. (Attachments: # 1 Exhibit)(Whittenberger, G) (Entered: 05/19/2008)
64 MOTION for Protective Order and To Quash Subpoena by S.C.C.P. Painting Contractors, Inc. Responses due by 6/9/2008 (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Whittenberger, G) (Entered: 05/21/2008)
65 NOTICE by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano (Attachments: # 1 FLSA Consent Forms)(Varela, Laura) (Entered: 05/27/2008)
Settlement Conference held on 5/28/2008 before Magistrate Judge Charles B. Day. (bab, Chambers) (Entered: 05/29/2008)

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05/30/2008

66 MEMORANDUM to counsel re scheduling telephone hearing onthe pending discovery motions. Signed by Magistrate Judge Susan K. Gauvey on 5/29/08. (jnl, Deputy Clerk) (Entered: 05/30/2008)

06/09/2008

67 NOTICE by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano (Attachments: # 1 FLSA Consent Form)(Varela, Laura) (Entered: 06/09/2008)

06/09/2008

68 RESPONSE in Opposition re 64 MOTION for Protective Order and To Quash Subpoena filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. Replies due by 6/23/2008. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Varela, Laura) (Entered: 06/09/2008)

06/17/2008

Telephone Motions Conference held on 6/17/2008 held before Magistrate Judge Susan K. Gauvey. (jnl, Deputy Clerk) (Entered: 06/18/2008)

06/18/2008

69 ORDER granting 60 Motion of plaintiffs to CompelDiscovery; denying 64 Motion of defendants for Protective Order and to quash subpoena. Signed by Magistrate Judge Susan K. Gauvey on 6/18/08. (jnl, Deputy Clerk) (Entered: 06/18/2008)

06/27/2008

70 Correspondence re: scheduling settlement conference. Reply required. (bab, Chambers) (Entered: 06/27/2008)

06/30/2008

71 Settlement Conference − setting (bab, Chambers) (Entered: 06/30/2008)

07/17/2008

72 NOTICE by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano (Attachments: # 1 FLSA Consent Form)(Varela, Laura) (Entered: 07/17/2008)

07/22/2008

Settlement Conference held on 7/22/2008 before Magistrate Judge Charles B. Day. (bab, Chambers) (Entered: 07/22/2008)

07/22/2008

Magistrate Judge Charles B. Day no longer assigned to case. (jnl, Deputy Clerk) (Entered: 07/22/2008)

07/25/2008

73 Correspondence re: Status Report due 7/30/08 (Blake, Catherine) (Entered: 07/25/2008)

07/30/2008

74 STATUS REPORT by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Whittenberger, G) (Entered: 07/30/2008)

07/30/2008

75 STATUS REPORT by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Varela, Laura) (Entered: 07/30/2008)

08/04/2008

76 MOTION to Amend/Correct 15 Answer to Complaint Responses due by 8/21/2008 (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Whittenberger, G) (Entered: 08/04/2008)

08/06/2008

77 ORDER Setting Deadlines for filing Motion for Leave to File Amended Complaint and Summary Judgment. Signed by Judge Catherine C. Blake on 8/6/08(cag, Deputy Clerk) (Entered: 08/07/2008)

08/11/2008

78 MOTION for Leave to File by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano Responses due by 8/28/2008 (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(Varela, Laura) (Entered: 08/11/2008)

08/21/2008

79 RESPONSE in Opposition re 76 MOTION to Amend/Correct 15 Answer to Complaint filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. Replies due by 9/4/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Varela, Laura) (Entered: 08/21/2008)

08/28/2008

80 RESPONSE in Opposition re 78 MOTION for Leave to File Amended Summons and Complaint filed by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. Replies due by 9/11/2008. (Attachments: # 1 Text of Proposed Order)(Whittenberger, G) (Entered: 08/28/2008)

08/29/2008

81 MOTION for Partial Summary Judgment by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano Responses due by 9/15/2008

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09/04/2008 09/09/2008 09/11/2008 09/11/2008 09/11/2008 09/29/2008 09/30/2008 10/01/2008
10/10/2008
12/16/2008 12/16/2008
12/16/2008
12/23/2008 12/23/2008 12/29/2008 01/07/2009

(Attachments: # 1 Memorandum In Support, # 2 Text of Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11)(Varela, Laura) (Entered: 08/29/2008)
82 REPLY to Response to Motion re 76 MOTION to Amend/Correct 15 Answer to Complaint filed by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Attachments: # 1 Exhibit A)(Whittenberger, G) (Entered: 09/04/2008)
Magistrate Judge Susan K. Gauvey no longer assigned to case. (jnl, Deputy Clerk) (Entered: 09/09/2008)
83 REPLY to Response to Motion re 78 MOTION for Leave to File filed by Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Varela, Laura) (Entered: 09/11/2008)
84 STIPULATION re 81 MOTION for Partial Summary Judgment OF EXTENSION OF TIME by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Whittenberger, G) (Entered: 09/11/2008)
85 PAPERLESS ORDER APPROVING 84 Stipulation until September 29, 2008 to respond to the Motion for partial summary judgment. Signed by Judge Catherine C. Blake on September 11, 2008. (Blake, Catherine) (Entered: 09/11/2008)
86 STIPULATION re 81 MOTION for Partial Summary Judgment of Extension of Time by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. (Whittenberger, G) (Entered: 09/29/2008)
87 PAPERLESS ORDER GRANTING 86 Stipulation for Extension of time until October 1, 2008 to respond. Signed by Judge Catherine C. Blake on September 30, 2008. (Blake, Catherine) (Entered: 09/30/2008)
88 RESPONSE in Opposition re 81 MOTION for Partial Summary Judgment filed by S.C.C.P. Painting Contractors, Inc., Giovanni Sulmonte. Replies due by 10/15/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order, # 5 Request for Hearing)(Whittenberger, G) (Entered: 10/01/2008)
89 REPLY to Response to Motion re 81 MOTION for Partial Summary Judgment filed by Victor Samuel Rodas, Melvin Cifuentes, Gustavo Reyes, Elmo Mauricio Chavarria, Elmar Reyes, Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Langford, Anne) (Entered: 10/10/2008)
90 MEMORANDUM. Signed by Judge Catherine C. Blake on 12/16/08. (jnl, Deputy Clerk) (Entered: 12/16/2008)
91 ORDER denying 76 Motion of defendants to Amend answer; granting 78 Motion of plaintiffs for Leave to File amended summons and complaint; granting 81 Motion of plaintiffs for Partial Summary Judgment; dismissing Giovanni Sulmonte from the case. Signed by Judge Catherine C. Blake on 12/16/08. (jnl, Deputy Clerk) (Entered: 12/16/2008)
92 AMENDED COMPLAINT against Ascenzo Sulmonte, S.C.C.P. Painting Contractors, Inc., filed by Victor Samuel Rodas, Melvin Cifuentes, Gustavo Reyes, Elmo Mauricio Chavarria, Elmar Reyes, Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Attachments: # 1 Redline Amended Complaint)(jnl, Deputy Clerk) (Entered: 12/16/2008)
93 ANSWER to Complaint Amended Complaint by Ascenzo Sulmonte.(Whittenberger, G) (Entered: 12/23/2008)
94 ANSWER to 92 Amended Complaint, by S.C.C.P. Painting Contractors, Inc..(Whittenberger, G) (Entered: 12/23/2008)
95 Correspondence re: Proposed Schedule (Blake, Catherine) (Entered: 12/29/2008)
96 STATUS REPORT (Regarding Court−Requested Jointly−Proposed Schedule) by S.C.C.P. Painting Contractors, Inc., Victor Samuel Rodas, Melvin Cifuentes, Gustavo Reyes, Elmo Mauricio Chavarria, Elmar Reyes, Ascenzo Sulmonte,

Case: 1:07-cv-00455-CCB As of: 07/17/2012 03:50 PM EDT 11 of 11

01/08/2009 01/09/2009 02/10/2009 02/27/2009 03/04/2009 03/04/2009
03/05/2009 03/13/2009 03/16/2009 03/16/2009
03/19/2009 03/19/2009 11/30/2010 12/01/2010

Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano. (Attachments: # 1 Text of Proposed Order)(Langford, Anne) (Entered: 01/07/2009)
97 ORDER REFERRING CASE to Magistrate Judge Charles B. Day for settlement. Signed by Judge Catherine C. Blake on 1/8/09. (jmw, Chambers) (Entered: 01/08/2009)
98 ORDER scheduling settlement conference. Signed by Magistrate Judge Charles B. Day on 1/9/09. (jnl, Deputy Clerk) (Entered: 01/09/2009)
Settlement Conference held on 2/10/2009 before Magistrate Judge Charles B. Day. (bab, Chambers) (Entered: 02/10/2009)
99 PAPERLESS Correspondence to counsel: The court would appreciate a status report from counsel by March 4, 2009. (Blake, Catherine) (Entered: 02/27/2009)
100 NOTICE by S.C.C.P. Painting Contractors, Inc., Victor Samuel Rodas, Melvin Cifuentes, Gustavo Reyes, Elmo Mauricio Chavarria, Elmar Reyes, Ascenzo Sulmonte, Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano regarding Joint Status Report (Langford, Anne) (Entered: 03/04/2009)
101 MOTION to Withdraw as Attorney for Individual Plaintiff and Request for Expedited Disposition of Motion by Victor Samuel Rodas, Melvin Cifuentes, Gustavo Reyes, Elmo Mauricio Chavarria, Elmar Reyes, Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano Responses due by 3/23/2009 (Attachments: # 1 Exhibit A −− Declaration of Laura E. Varela, # 2 Exhibit B −− Certificate Pursuant to Local Rule 101(2)(a), # 3 Text of Proposed Order)(Langford, Anne) (Entered: 03/04/2009)
102 MOTION to Dismiss (Plaintiff Pedro Vasquez) by S.C.C.P. Painting Contractors, Inc., Ascenzo Sulmonte Responses due by 3/23/2009 (Attachments: # 1 Text of Proposed Order)(Whittenberger, G) (Entered: 03/05/2009)
103 PAPERLESS ORDER granting 101 Motion to Withdraw as Attorney as to Pedro Vasquez.. Signed by Judge Catherine C. Blake on 3/13/09. (jnl, Deputy Clerk) (Entered: 03/13/2009)
104 ORDER granting 102 Motion of defendants to Dismiss Pedro Vasquez. Signed by Judge Catherine C. Blake on 3/16/09. (jnl, Deputy Clerk) (Entered: 03/16/2009)
105 Joint MOTION Entry of Consent Decree by S.C.C.P. Painting Contractors, Inc., Victor Samuel Rodas, Melvin Cifuentes, Gustavo Reyes, Elmo Mauricio Chavarria, Elmar Reyes, Ascenzo Sulmonte, Giovanni (Henry) Montoya, Alexander Figueroa, Manuel Carrera, Ivan Aplicano Responses due by 4/2/2009 (Attachments: # 1 Text of Proposed Order Consent Decree, # 2 Exhibit A to Consent Decree, # 3 Exhibit B to Consent Decree, # 4 Exhibit C to Consent Decree)(Langford, Anne) (Entered: 03/16/2009)
106 ORDER denying as moot 59 Motion for Order to Show Cause; granting 105 Joint Motion for Entry of Consent Decree. Signed by Judge Catherine C. Blake on 3/19/09. (jnls, Deputy Clerk) (Entered: 03/19/2009)
107 CONSENT DECREE and approval. Signed by Judge Catherine C. Blake on 3/19/09. (jnl, Deputy Clerk) (Entered: 03/20/2009)
108 STIPULATION of Dismissal by Ivan Aplicano, Manuel Carrera, Elmo Mauricio Chavarria, Melvin Cifuentes, Alexander Figueroa, Giovanni (Henry) Montoya, Elmar Reyes, Gustavo Reyes, Victor Samuel Rodas. (Varela, Laura) (Entered: 11/30/2010)
109 PAPERLESS ORDER approving 108 Stipulation of Dismissal filed by Ivan Aplicano, Manuel Carrera, Giovanni (Henry) Montoya, Melvin Cifuentes, Gustavo Reyes, Elmar Reyes, Elmo Mauricio Chavarria, Alexander Figueroa, Victor Samuel Rodas. Signed by Judge Catherine C. Blake on 12/1/10. (jnl, Deputy Clerk) (Entered: 12/01/2010)