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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Maria Tolano, Francisco Javier Ponce Bernal, 

Jose Daniel Mendoza, and Raquel Herrera,

Plaintiffs,

v. 

El Rio Bakery and Carlos Guillermo Vargas 

Mendoza,

Defendants.

No. CV-18-00125-TUC-RM

ORDER 

Pending before the Court is Plaintiffs’ “Motion to Court for Entry of Default 

Judgment and Request for Monetary Relief” as to Defendants El Rio Bakery and Carlos 

Guillermo Vargas Mendoza. (Doc 30.)1 For the reasons explained below, the Court will 

order limited further briefing before resolving this Motion. 

I. Procedural and Factual Background

Plaintiffs Maria Tolano, Raquel Herrera, Jose Daniel Mendoza, and Francisco Javier 

Ponce Bernal are former employees of Defendant El Rio Bakery. (Doc. 1.) Plaintiffs filed 

their operative First Amended Complaint on July 24, 2018. (Doc. 12.) They alleged claims 

for overtime violations under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a);

failure to pay the minimum wage in compliance with Arizona’s Minimum Wage Act, 

A.R.S. § 23-362 et. seq.; failure to make timely wage payments under A.R.S. § 23-351; 

 

1 Plaintiffs filed both a Motion captioned “Motion to Court for Entry of Default Judgment 

and Request for Monetary Relief” (Doc. 29) and an identical Motion with an identical 

caption but attached to a Memorandum of Points and Authorities (Doc. 30). The Court will 

treat the first Motion (Doc. 29) as superseded by the more recent Motion (Doc. 30). 
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retaliation in violation of the FLSA, 29 U.S.C. § 215(a)(3); retaliation in violation of A.R.S.

§ 23-364(B); and common-law unjust enrichment. (Id.) Service was executed upon 

Defendant El Rio Bakery and Defendant bakery-owner Carlos Guillermo Vargas Mendoza 

on August 28, 2018. (Docs. 15, 16.) 

Neither Defendant filed an Answer to Plaintiff’s Amended Complaint. (Doc. 12.) 

On September 14, 2018, Defendant Vargas Mendoza gave Notice of Filing of Chapter 13 

Bankruptcy Petition. (Doc. 17.) The Court ordered briefing as to whether the automatic 

stay provision of 11 U.S.C. § 362 applied to Defendants in light of the pending bankruptcy 

petition. (Doc. 18.) Both parties agreed that the stay provision applied only to Defendant 

Vargas Mendoza, the debtor in the bankruptcy petition, and not to Defendant El Rio 

Bakery. (Docs 19, 20.) On December 17, 2018, the Court provided Defendant El Rio 

Bakery an extension of time to file its Answer, but no Answer was filed. (Doc. 21.) 

On January 2, 2019, Plaintiffs requested that the Clerk of Court enter default 

judgment against Defendant El Rio Bakery pursuant to Rule 55(a) of the Federal Rules of 

Civil Procedure. (Doc. 22.) Default was entered as to Defendant El Rio Bakery by the Clerk 

of Court on that same day. (Doc. 23.) On February 19, 2019, the Bankruptcy Court 

dismissed Defendant Vargas Mendoza’s Chapter 13 Petition, thus lifting the automatic stay 

pursuant to 11 U.S.C. § 362(c)(2)(B). (Doc. 26.) On May 13, 2019, Plaintiffs requested the 

Clerk of Court enter default against Defendant Vargas Mendoza, and default was entered 

on March 14, 2019. (Docs. 26, 27.) On April 4, 2019, Plaintiffs moved the Court for entry 

of default judgment against both Defendant El Rio Bakery and Defendant Vargas 

Mendoza, and requested monetary relief. (Docs. 29, 30.) 

II. Discussion

Once a party’s default has been entered, the district court has discretion to grant 

default judgment against that party. See Fed. R. Civ. P. 55(b)(2); Aldabe v. Aldabe, 616 

F.2d 1089, 1092 (9th Cir. 1980). A defendant’s default does not automatically entitle the 

plaintiff to a court-ordered judgment. See Draper v. Coombs, 792 F.2d 915, 924–25 (9th 

Cir. 1986). In Eitel v. McCool, the Ninth Circuit laid out seven factors that may be 
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considered by courts exercising discretion as to the entry of a default judgment: (1) the 

possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claim; 

(3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the 

possibility of a dispute concerning material facts; (6) whether the default was due to 

excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil 

Procedure favoring decisions on the merits. 783 F.2d 1470, 1471-72 (9th Cir. 1986). 

“[U]pon default, the factual allegations of the complaint, except those relating to the 

amount of damages, will be taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 

560 (9th Cir. 1977). A plaintiff seeking default judgment and monetary relief “is required 

to prove all damages sought in the complaint.” Philip Morris USA, Inc. v. Castworld 

Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). “The plaintiff is required to provide 

evidence of its damages, and the damages sought must not be different in kind or amount 

from those set forth in the complaint.” Fed. R. Civ. P. 54(c); Amini Innovation Corp. v. 

KTY Int’l Mktg., 768 F.Supp.2d 1049, 1054 (C.D. Cal. 2011). “In determining damages, a 

court can rely on declarations submitted by the plaintiff[.]” Philip Morris USA, Inc., 219 

F.R.D. at 498. 

Plaintiffs request double damages for overtime violations as provided by the FLSA, 

29 U.S.C. § 216(b). (Doc. 31 ¶ 10.) They also request treble damages for minimum wage 

violations under Arizona’s Minimum Wage Act, A.R.S. § 23-364(G). (Id. ¶ 11.) They 

further request $150 in damages for retaliation under A.R.S. § 23-364(G), to be paid for 

each day between Plaintiff’s alleged termination or constructive discharge and October 4, 

2018, the date El Rio ceased operations. (Id. ¶ 12.) Plaintiff Tolano requests damages in 

the amount of $52,171, comprised of $6,190 in base wages and liquidated damages for 

overtime violations under the FLSA, $11,781 in treble damages under the Arizona 

Minimum Wage Act, and $34,200 as remedy for retaliation. (Id. at p. 7.) Plaintiff Bernal 

requests damages in the amount of $51,925, comprised of $7,780 in base wages and 

liquidated damages for overtime violations under the FLSA, $23,295 in treble damages 

under the Arizona Minimum Wage Act, and $20,850 as remedy for retaliation. (Id. at p. 
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10.) Plaintiff Mendoza requests damages in the amount of $30,106, comprised of $6,976 

in base wages and liquidated damages for overtime violations under the FLSA, $4,680 in 

treble damages under the Arizona Minimum Wage Act, and $18,450 as remedy for 

retaliation. (Id. at p. 11.) Plaintiff Herrera requests damages in the amount of $62,876, 

comprised of $410 in base wages and liquidated damages for overtime violations under the 

FLSA, $5,916 in treble damages under the Arizona Minimum Wage Act, and $56,550 as 

remedy for retaliation. (Id. at p. 12-13.)

Plaintiffs have supported their requests for overtime violation damages under the 

FLSA and minimum wage violations under the Arizona Minimum Wage Act with a lengthy 

and detailed affidavit by their counsel, specifying for each relevant week the number of 

hours worked, the amount of overtime not paid, the actual wages paid, and the applicable 

minimum wage at that time. (Id. at p. 25-55.) 

Plaintiffs, however, have provided no evidence of actual damages suffered as a 

result of their alleged retaliatory termination or constructive discharge. The enforcement 

section of Arizona’s Minimum Wage Act provides in relevant part that, “[A]ny employer 

who retaliates against an employee or other person in violation of this article shall be 

required to pay the employee an amount set by the commission or a court sufficient to 

compensate the employee and deter future violations, but not less than one hundred fifty 

dollars for each day that the violation continued or until legal judgment is final.” A.R.S. § 

23-364(G). Instead of providing evidence of their actual damages, Plaintiffs each request 

$150 for each day between their alleged termination or constructive discharge and the day 

Defendant El Rio ceased operations. (Id. ¶ 12.)

The Court has found no decision construing the meaning of “for each day that the 

violation continued” as provided for by Arizona’s Minimum Wage Act. A.R.S. § 23-

364(G). Plaintiffs request statutory damages of $150 for each day following their 

termination or constructive discharge until Defendant El Rio shut down, and they therefore

implicitly argue that the violation “continued” until Defendant El Rio ceased operations. 

However, the statute’s plain language provides for a monetary remedy “sufficient to 
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compensate the employee and deter future violations.” A.R.S. § 23-364(G). To determine 

what is sufficient to compensate an employee for retaliatory termination, and whether such 

amount would be sufficient to deter future violations, the Court must know the extent to 

which the employee mitigated damages by securing alternative employment. In a related 

context, courts have consistently required such evidence in determining backpay 

compensation under federal employment laws. See Ford Motor Co. v. E.E.O.C., 458 U.S. 

219, 232 (1982) (plaintiff “forfeits his right to backpay if he refuses a job substantially 

equivalent to the one he was denied”); see also Caudle v. Bristow Optical Co., Inc., 224 

F.3d 1014, 1020 (9th Cir. 2002) (“plaintiff seeking back pay [has] a duty to mitigate 

damages by seeking alternative employment with reasonable diligence”) (internal citation 

and quotation marks omitted). 

Plaintiffs have provided no evidence of damages suffered as a result of their alleged 

retaliatory terminations and constructive discharges. The Court will provide Plaintiffs with 

an opportunity to submit evidence as to wages lost as a result of their alleged retaliatory 

termination or constructive discharge. Such evidence, if provided, shall specifically explain 

the extent to which Plaintiffs attempted to and were able to mitigate those damages.

The Court will also order Defendants to show cause as to why default judgment 

should not be entered. 

Accordingly, 

IT IS ORDERED that within twenty-one days of the date this Order is docketed, 

Plaintiffs may submit evidence as to the damages they experienced as a result of their 

termination.

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .
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IT IS FURTHER ORDERED that within twenty-one days of the date this Order 

is docketed, Defendants must show cause as to why default judgment should not be entered 

against them. 

Dated this 20th day of August, 2019.