IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ARTURO GARCIA, etc., )

)

Plaintiff, )

)

v. ) No. 12 C 624

)

BERUMEN LAWN SERVICES, INC., )

et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Berumen Lawn Services, Inc. (“Lawn Services”), having filed

a motion to vacate the order of default judgment entered against

it, was ordered by this Court to file its reply to the response

to that motion by plaintiff Arturo Garcia (“Garcia”) on or before

September 25. That date came and went without any delivery to

this Court’s chambers of the anticipated reply, and this Court’s

uninterrupted involvement in a whole series of high-priority

matters in other cases on its calendar resulted in the absence of

a follow-up on the matter. But no apologies for such a lack of 1

judicial policing is called for, because it is of course a

lawyer’s responsibility to carry out his or her court-ordered

 In that respect, it should always be remembered that the 1

commodity in shortest supply in the federal justice system is the

judge’s time, which by definition must be spread over a calendar

comprising hundreds of cases (the very recent accession of this

Court’s newest colleague, Honorable Sara Ellis, to the bench has

provided an accurate count in that respect--her new calendar

assembled from those of all active and senior judges, as 

specifically calculated to provide a calendar of average size to

a new judge, delivered a total of 291 cases to Judge Ellis).
obligations.

This District Court’s LR 5.2(f) creates a sort of “dealer’s

choice”--it is up to the judge to whom a case is assigned to

determine whether he or she wishes to maintain paper files or,

instead, prefers to avoid hard-copy delivery in favor of

electronic retrieval. Under that LR a lawyer is expected to

inform himself or herself, from a judge’s website, as to which of

those alternatives the judge has chosen. And this Court, which

relies on hard-copy filing, has expressed that requirement as the

first (and emphasized) entry on its website, including a warning

that noncompliance with result in a fine.

As it turns out, Lawn Services’ counsel did file the

required reply on time--on September 25--but counsel never

delivered a copy to this Court’s chambers. When this Court’s 2

recent request for a staff follow-up disclosed the filing but

nondelivery of the reply, it had the document printed up from the

court docket by its courtroom deputy.

With the motion to vacate the default and the default

judgment having been fully briefed, this Court is in a position

to act on it. In part this Court disagrees with Lawn Services’

legal position--it has found that substantial authority supports

the proposition that a lawn service company such as Lawn Services

 Both this Court’s secretary and its courtroom deputy 2

maintain records as to all court papers received by either, and

neither shows any delivery of the reply on or after September 25.

2
may be covered by the Fair Labor Standards Act (“FLSA,” 29 U.S.C.

§§201 et seq.)--see, e.g., Polycarpe v. E&S Landscaping Serv.,

Inc., 616 F.3d 1217 (11th Cir. 2010)(per curiam), reversing a

district court’s determination that a landscaping company is not

subject to “enterprise” coverage under the FLSA. But in this

instance such a holding does not support Garcia’s judgment

against Lawn Services, for the company’s records reflect its

gross receipts do not begin to approach the $500,000 annual

figure that the statute requires for such “enterprise” coverage.

There is another possible predicate for FLSA coverage of an

employer such as Lawn Services: “individual” as contrasted with

“enterprise” coverage (see, e.g., Tony & Susan Alamo Found. v.

Sec’y of Labor, 471 U.S. 290, 295 n.8 (1985)). For such

individual coverage an employee must be “engaged in commerce or

in the production of goods for commerce” (29 U.S.C. §207(a)(1)). 

On that score it appears doubtful that Garcia’s work for Lawn

Services would have come under that rubric.

Hence this Court is prepared to, and does, grant Lawn

Services’ motion to vacate the default and default judgment. 

That will, among other things, enable the parties to consider the

prospect of settlement (as Lawn Services’ counsel has indicated

the company is prepared to do).

In that regard, however, this Court is constrained to

address two other matters. For one thing, this Court’s website

3
begins with a statement of its policy applicable where, as here,

a party has flouted the mandate of LR 5.2(f) and the website--a

policy that includes the requirement that the noncompliant

litigant must pay a $100 fine to the Clerk of Court. And the

other matter is prompted by Lawn Services’ argument that its

principal individual defendant Ismael Berumen speaks a language

other than English as his primary language and has a limited

ability to read, write, speak and understand English. Those

facts however, cannot justify his conduct in ignoring this

lawsuit against his company--conduct that caused Garcia’s counsel

to engage in a good deal of lawyer activity that would not

otherwise have been required. Under those circumstances this

Court expects that Lawn Services should undertake to bear a

reasonable portion of the lawyers’ fees on the other side of the

“v.” as part of any disposition of this litigation.3

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: November 1, 2013

 What has been said in the text refers to Lawn Services 3

alone, because both individual defendants--Ismael Berumen and his

brother--are no longer in the case.

4