Case 7:15-cv-00314 Document 23 Filed in TXSD on 08/18/16 Page 1 of 19
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

August 18, 2016
David J. Bradley, Clerk

JOSE MANUEL ARCIGA GARCIA, et al, §
§
Plaintiffs,
§
VS.
§ CIVIL ACTION NO. 7:15-CV-314
§
FRANCISCO GARCIA, et al,
§
§
Defendants.
§
OPINION & ORDER
The Court now considers the first amended motion for entry of default and, in the
alternative, motion for summary judgment,1 filed by Jose Manuel Arciga Garcia and Sandro
Alejandro Garcia Moreno (“Plaintiffs”). Also before the Court is Plaintiffs’ motion for discovery
sanctions against Francisco Garcia, Francisco Garcia Rodriguez and Blanca Medina Salinas,
each d/b/a Pollos Medina (“Defendants”),2 supplemented on April 14, 2016.3 Defendants failed
to respond to either motion. Therefore, the Court will consider the motions as unopposed.4
I.

Background
Plaintiffs allege Defendants failed to pay minimum wage and over-time pay while

Plaintiffs were employed by Defendants at various locations of their restaurant, Pollos Medina.5
On July 20, 2015, Plaintiffs filed this action for declaratory relief and monetary damages against
Defendants for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the Texas
Minimum Wage Act (“TMWA”), Texas Labor Code 62.001.6

1

Dkt. No. 18.
Dkt. No. 14.
3
Dkt. No. 17.
4
See Local Rule 7.4 of Local Rules of the United States District Court for the Sothern District of Texas.
5
Dkt. No. 1 (“Complaint”).
6
See id.
2

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Plaintiffs also assert a promissory estoppel and unjust enrichment claim.7 Defendants, at
that time proceeding pro-se, filed a general denial on August 12, 2015.8 In October 2015, the
Court received notice that Defendants had retained Mr. Florencio Lopez as counsel.9 At the
initial pre-trial conference held on October 20, 2015, the Court ordered Defendants to file an
amended answer by October 30, 2015 after noting that their general denial was improper in
federal court.10 The Court excused the improper filing as Defendants were pro-se at the time the
general denial was filed. Defendants have not filed an amended answer to date.
On January 28, 2016, Plaintiffs filed a motion to compel discovery informing the Court
of Defendants’ failure to respond to their discovery requests. 11 Plaintiffs also filed a motion
requesting the Court to sanction Defendants for failing to appear for their oral depositions
scheduled for December 8, 2015, despite being timely and properly noticed. 12 As a result of
Plaintiffs’ motion to compel, the Court ordered Defendants to respond to the request for
production within five days of the order date.13 The Court’s order was dated April 6, 2016; thus,
Defendants were to provide the documents responsive to Plaintiffs’ request for production by
April 11, 2016. Defendants failed to do so. On April 14, 2016, Plaintiffs supplemented their
motion for discovery sanctions to alert the Court to Defendants’ subsequent discovery violation.
In the instant motion, Plaintiffs move for entry of default or, in the alternative, for summary
judgment.14

7

See id.
Dkt. No. 5.
9
Dkt. No. 8.
10
See Minute Entry, October 20, 2015.
11
Dkt. No. 13.
12
Dkt. No.
13
Dkt. No. 16. The date on the order is April 6, 2016.
14
Dkt. No. 18.
8

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Specifically, Plaintiffs move for summary judgment against Defendants pursuant to the
FLSA as follows:
(i) Defendants failed to pay Plaintiff [sic] the federal minimum wage of $7.25 per
hour for all hours worked, in violation of 29 U.S.C. § 206; and (ii) Defendants
failed to pay Plaintiff [sic] overtime compensation for the hours that he [sic]
worked in excess of forty hours a week, in violation of 29 U.S.C. § 207(a)(1).
Accordingly, Plaintiffs request that the Court also order Defendants to pay
Plaintiff Jose Manuel Arciga Garcia the amount of $65,332.75 in unpaid wages
and liquidated damages and pay Plaintiff Sandro Alejandro Garcia Moreno the
amount of $42,707.88 in unpaid wages and liquidated damages. In total, Plaintiffs
request that the Court order Defendants to pay Plaintiffs $108,040.63 in unpaid
wages and liquidated damages.15
II.

Entry of Default, or Motion for Summary Judgment
As a preliminary matter, the Court DENIES Plaintiffs’ motion for entry of default

judgment. The applicable procedure and nomenclature regarding Federal Rule of Civil Procedure
55(a) was set forth by the United States Court of Appeals for the Fifth Circuit as follows:
A default occurs when a defendant has failed to plead or otherwise respond to the
complaint within the time required by the Federal Rules. An entry of default is
what the clerk enters when the default is established by affidavit or otherwise.
Fed. R. Civ. P. 55(a). After defendant's default has been entered, plaintiff may
apply for a judgment based on such default. This is a default judgment.16
Plaintiffs move the Court to enter default against Defendants for their failure to enter a
valid answer.17 As noted, Defendants failed to file a proper answer thus Defendants were ordered
to file an amended answer by October, 30 2015.18 Defendants failed to do. Nonetheless, because
Defendants have appeared,19 the Court finds that entry of default is not warranted. Accordingly,
the entry of default is DENIED. The Court now turns to the pending motion for summary
judgment and for sanctions, and related matters.
15

Dkt. No. 18 at ¶ 17.
New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996) (emphasis in original).
17
Dkt. No. 18 at ¶ 8.
18
See Minute Entry, October 20, 2015.
19
Defendants have filed an answer, were represented by counsel at the initial pretrial conference in October 2015,
and also participated in the filing of the joint pretrial order. See Dkt. No. 19.
16

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III.

Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is

“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”20 A fact is “material” if its resolution could affect the outcome of the action, 21 while a
“genuine” dispute is present “only if a reasonable jury could return a verdict for the nonmovant.”22 As a result, “[o]nly disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of summary judgment.”23
In a motion for summary judgment, the movant bears the initial burden of showing the
absence of a genuine issue of material fact.24 In this showing, “bald assertions of ultimate fact”
are insufficient.25 Absent a sufficient showing, summary judgment is not warranted, the analysis
is ended, and the non-movant need not defend the motion.26 On the other hand, the movant is
freed from this initial burden on matters for which the non-movant would bear the burden of
proof at trial; in that event, the movant’s burden is reduced to merely pointing to the absence of
evidence.27 If the movant meets its initial burden, the non-movant must then demonstrate the
existence of a genuine issue of material fact.28 This demonstration must specifically indicate
facts and their significance,29 and cannot consist solely of “conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.”30

20

FED. R. CIV. P. 56(a).
Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)(internal quotation marks
and citation omitted).
22
Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006)(citation omitted).
23
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
24
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
25
Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir. 1978)(citation omitted).
26
See Celotex Corp., 477 U.S. at 323.
27
See id. at 323-25; see also Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995).
28
See id.
29
See Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
30
U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (citing TIG Ins. Co. v. Sedgwick James
of Wash., 276 F.3d 754, 759 (5th Cir. 2002)).
21

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In conducting its analysis, the Court considers evidence from the entire record and views
that evidence in the light most favorable to the non-movant.31 Thus, although the Court refrains
from determinations of credibility and evidentiary weight, the Court nonetheless gives credence
to all evidence favoring the non-movant; on the other hand, regarding evidence that favors the
movant, the Court gives credence to evidence that is uncontradicted and unimpeachable, but
disregards evidence the jury is not required to believe.32 Rather than combing through the record
on its own, the Court looks to the motion for summary judgment and response to present the
evidence for consideration.33 Parties may cite to any part of the record, or bring evidence in the
motion and response.34 By either method, parties need not proffer evidence in a form admissible
at trial,35 but must proffer evidence substantively admissible at trial.36 However, allegations set
out in pleadings are not evidence.37
a. Summary Judgment Evidence
In support of the motion for summary judgment, Plaintiffs have submitted various
documents including: (1) declarations from each Plaintiff;38 (2) an assumed name certificate
showing Defendant Francisco Garcia as the owner of Pollos Medina;39 (3) Plaintiffs’ request for

31

See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citations omitted).
See id.
33
See FED.R.CIV. P. 56(e).
34
See FED. R. CIV. P. 56(c).
35
See Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form
that would be admissible at trial in order to avoid summary judgment.”).
36
See Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (“the evidence proffered by the plaintiff to satisfy his
burden of proof must be competent and admissible at trial.”).
37
Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (“[P]leadings are not summary judgment
evidence.”).
38
Dkt. No. 18, Exh. B (“Declaration of Jose Manuel Arciga Garcia”); Exh. C (“Declaration of Sandro Alejandro
Garcia Moreno”).
39
Id., Exh. D.
32

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admissions and requests for production, sent to each Defendant;40 (4) damage calculations for
each Plaintiff;41 (5) and a declaration from Plaintiffs’ attorney in charge, Efren C. Olivares.42
IV.

Discussion
As noted, Defendants failed to respond to Plaintiffs’ motion for summary judgment; thus,

pursuant to Rule 7.4 of the Local Rules of the United States District Court for the Southern
District of Texas, the Court will construe Defendants’ non-responsiveness as a representation of
no opposition. However, a lack of opposition by one party does not itself warrant summary
judgment as to that party.43 Instead, consistent with the standard enumerated above, summary
judgment is warranted only if the movant meets its initial burden.44
Defendants failed also to respond to Plaintiffs’ request for admissions. When a party
fails to respond timely to requests for admissions, the matters in the requests are deemed
admitted45 and are “conclusively established.”46 A court may grant summary judgment on the
basis of admissions.47 Here, Defendants’ failure to respond to Plaintiffs’ request for admissions
deems those requests admitted and the Court will consider the admissions, as well as the
uncontroverted summary judgment evidence, in the analysis below.
a. Facts
Pollos Medina is a restaurant with locations in Mission and Alton, Hidalgo County,
Texas.48 Defendant Francisco Garcia does business as Pollos Medina.49 Pollos Medina is a sole

40

Id., Exh. E.
Id., Exh. F (damages calculation chart for Plaintiff Jose Manuel Arciga Garcia); Exh. G (damages calculation
chart for Plaintiff Sandro Alejandro Garcia Moreno).
42
Id., Exh. H.
43
Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). See also, FED. R. CIV. P. 56.
44
Id.
45
FED.R.CIV. P. 36(a)(3).
46
FED.R.CIV. P. 36(b).
47
Fed. R. Civ. Proc. 56(c); In re Carney, 258 F.3d 415, 420 (5th Cir. 2001).
48
Declaration of Jose Manuel Arciga Garcia at ¶ 2; Declaration of Sandro Alejandro Garcia Moreno at ¶ 2.
49
See Dkt. No. 18, Exh. D.
41

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proprietorship and Defendant Francisco Garcia is the owner.50 Pollos Medina’s business had
annual volume of sales of at least $500,000 for 2012, 2013 and 2014.51 Defendants employed,
supervised and paid Plaintiffs.52 Defendants procured one of the ingredients for their chicken, a
seasoning known as preparado, from Mexico and brought it into Texas for use at their
restaurants.53
Plaintiff Jose Manuel Arciga Garcia (“Garcia”) worked for Defendants starting from
approximately July 9, 2013 until approximately July 20, 2015. 54 Garcia’s duties during his
employment at Pollos Medina included, among other tasks, cooking chicken, waiting tables, and
performing building maintenance.55 Garcia worked from 8:00 a.m. to 9:00 p.m., with no breaks,
on the weekdays, and from 7:00 a.m. to 10:30 p.m. on the weekends.56 Garcia worked between 6
and 7 days per week for Defendants.57 Defendants paid Garcia a salary for his work.58
Defendants have not produced the employment related records requested by Plaintiffs.59
Nonetheless, Garcia attests that from approximately July 9, 2013 to approximately March 9,
2015, Defendants paid him $45.00 per day.60 From approximately March 9, 2015 until July 20,
2015, his last day of employment, Defendants paid Garcia $75.00 per day.61
Plaintiff Sandro Alejandro Garcia Moreno (“Moreno”) worked for Defendants starting
from approximately December 2013 to approximately October 2014.62 Moreno’s duties during
his employment at Pollos Medina included, among other tasks, preparing, cutting, seasoning and
50

See id.
Id., Exh. E., Request for Admissions (“RFA”) Nos. 11, 12, and 13.
52
See Declaration of Jose Manuel Arciga Garcia; Declaration of Sandro Alejandro Garcia Moreno; RFA Nos. 3-5.
53
See Declaration of Jose Manuel Arciga Garcia; Declaration of Sandro Alejandro Garcia Moreno; RFA No. 19-20.
54
Declaration of Jose Manuel Arciga Garcia.
55
See id.
56
See id.
57
See id.
58
See id.; RFA No. 5.
59
See Exh. E.
60
Declaration of Jose Manuel Arciga Garcia.
61
See id.
62
Declaration of Sandro Alejandro Garcia Moreno.
51

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cooking chicken; waiting on tables, cleaning the restaurant and washing dishes.63 Moreno
worked from 8:30 a.m. to 10:00 p.m., with only short breaks.64 Moreno worked 6 days per week
for Defendants.65 Defendants paid Moreno a salary for his work.66 Moreno attests that from
approximately December 2013 to approximately March 15, 2014, Defendants paid him $35.00
per day.67 From approximately March 16, 2014 until October 15, 2014, Defendants paid Moreno
$45.00 per day.68 Moreno was usually paid in cash.69
Defendants admit they knew Plaintiffs worked over 40 hours in a week, knew of the
minimum wage and knew of the overtime rate of time and half during Plaintiffs’ employment,
and did not pay Plaintiffs at least the minimal hourly wage. 70 Defendants also admit they
willfully violated Plaintiffs’ rights under the FLSA.71
b. Applicable Law
A business is subject to the FLSA if it has employees “engaged in commerce or in the
production of goods for commerce, or has employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce by any person”;72 and “is
an enterprise whose annual gross volume of sales made or business done is not less than
$500,000. . . .”73 The FLSA defines an employer to be any person acting directly, or indirectly, in

63

See id.
See id.
65
See id.
66
See id.; RFA No. 5.
67
Declaration of Sandro Alejandro Garcia Moreno.
68
See id.
69
See id.
70
RFA Nos. 6-9.
71
RFA No. 10.
72
29 U.S.C.A. § 203(s)(1)(A)(i)(West).
73
29 U.S.C.A. § 203(s)(1)(A)(ii)(West).
64

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the interest of an employer in relation to an employee. 74 To “employ” means to “suffer or permit
to work.”75
When determining whether there is an employer/employee relationship, the Fifth Circuit
applies the “economic reality” test.76 In applying this test the court must consider if the alleged
employer: “(1) possessed the power to hire and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records.”77 A court must apply the four prong
economic realities test to each entity and individual alleged to be an employer.78 While each
element does not have to be established in every case,79 “finding employer status when none of
the factors is present would make the test meaningless.”80
The Fifth Circuit has commented that the “remedial purposes of the FLSA require the
courts to define ‘employer’ more broadly than the term would be interpreted in traditional
common law applications.”81 Further, the “dominant theme in the case law is that those who
have operating control over employees within companies may be individually liable for FLSA
violations committed by the companies.”82 Pursuant to the FLSA, an employer must pay his or
her employees a minimum wage, currently $7.25 per hour.83 Generally, the FLSA requires
employers to pay employees for all hours worked.84 Furthermore, the FLSA provides that an

74

29 U.S.C.A § 203(d)(West).
29 U.S.C.A. § 203(g)(West).
76
Gray v. Powers, 673 F.3d 352, 354–55 (5th Cir. 2012)(citations omitted).
77
Id. at 355 (citation and internal quotation marks omitted).
78
Id. at 355 (citation omitted).
79
Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014)(citing Gray, 673 F.3d at 357).
80
Gray, 673 F.3d at 357.
81
McLaughlin v. Seafood, Inc., 867 F.2d 875, 877 (5th Cir. 1989)(per curiam), modifying 861 F.2d 450 (5th
Cir.1988).
82
Martin v. Spring Break ′83 Prods., LLC, 688 F.3d 247, 251 (5th Cir.2012) (citation and internal quotation marks
omitted).
83
29 U.S.C.A. § 206(a)(West).
84
Von Friewalde v. Boeing Aerospace Operations, Inc., 339 Fed. Appx. 448, 453 (5th Cir. 2009).
75

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employee be paid at least one and one half-times the regulate rate for each hour worked over 40
hours in any given week.85
The FLSA also requires employers to “make, keep, and preserve” accurate records of the
“wages, hours, and other conditions and practices of employment. . . .” 86 Generally, an employee
seeking unpaid minimum wages or unpaid overtime compensation under the FLSA must first
show that he “performed work for which he was not properly compensated.”87 An employee can
satisfy this burden by requesting his records from his employer. However, when an employer has
failed to keep employment related records, “[t]he solution ... is not to penalize the employee by
denying him any recovery on the ground that he is unable to prove the precise extent of
uncompensated work.”88 Instead, an employee can satisfy his burden of demonstrating a prima
facia case under the FLSA
if he proves that he has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show the amount and
extent of that work as a matter of just and reasonable inference. The burden then
shifts to the employer to come forward with evidence of the precise amount of
work performed or with evidence to negative the reasonableness of the inference
to be drawn from the employee's evidence. If the employer fails to produce such
evidence, the court may then award damages to the employee, even though the
result be only approximate.89
c. Employer-Employee Relationships
As a threshold issue, the Court must apply the economic reality test to determine if each
Defendant was an employer of each Plaintiff. “An individual's operational control can be shown

85

29 U.S.C.A. § 207(a)(1)(West)(“no employer shall employ any of his employees who in any workweek is
engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in
commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is employed.”).
86
29 U.S.C.A. § 211(c) (West).
87
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687(1946), superseded by statute on other grounds as stated
in Integrity Staffing Solutions, Inc. v. Busk, U.S., 135 S. Ct. 513 (2014).
88
Von Friewalde, 339 Fed. Appx. at 455 (quoting Anderson, 328 U.S. at 687).
89
Id.; Albanil v. Coast 2 Coast, Inc., 444 Fed. Appx. 788, 806 (5th Cir. 2011).

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through his [1] power to hire and fire, [2] ability to supervise, [3] power to set wages, and [4]
maintenance of employment records.”90 Plaintiffs have to present evidence to satisfy each prong
of the test.91
i. Defendant Francisco Garcia
As noted above, Defendant Francisco Garcia does business as Pollos Medina.92 Pollos
Medina is a sole proprietorship and Defendant Francisco Garcia is the owner.93 To satisfy the
first element of the economic realities test, Plaintiffs have to present evidence to show that
Defendant Francisco Garcia had the power to hire and fire them. As owner of Pollos Medina, the
Court cannot assume Defendant Francisco Garcia had the power to hire and fire as “a statusbased inference of control” will not do in the Fifth Circuit.94 However, in this case Defendant
Francisco Garcia has admitted to employing, supervising, and paying each Plaintiff for his
work.95 These admissions fully satisfy prongs two and three of the economic realities test, and
satisfy prong one, at least in part.
Defendant Francisco Garcia has also admitted to (1) not creating any written records of
the hours worked by Plaintiffs during their employment and (2) not providing written records of
the hours worked by Plaintiffs.96 Accordingly, it is not possible for Plaintiffs to show that
Defendant Francisco Garcia maintained employment records as he has admitted to not creating
written records and failed to provide them.
After applying the economic reality test to Defendant Francisco Garcia, the Court
concludes that he meets sufficient criteria to be considered an employer. The Court reaches this
90

Gray v. Powers, 673 F.3d 352, 357 (5th Cir. 2012).
Orozco v. Plackis, 757 F.3d 445, 449 (5th Cir. 2014)(applying the economic realities test by analyzing whether
plaintiff presented evidence to show that the defendant owner satisfied the various prongs).
92
See Dkt. No. 18, Exh. D.
93
See id.
94
Gray v. Powers, 673 F.3d 352, 356 (5th Cir. 2012).
95
Dkt. No. 18, Exh. E, RFA Nos. 3-5.
96
RFA Nos. 1-2.
91

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conclusion by heeding Fifth Circuit precedent recognizing that each element of the economic
reality test does not have to be established in every case. 97 Furthermore, the Fifth Circuit has
observed that the “remedial purposes of the FLSA require the courts to define ‘employer’ more
broadly than the term would be interpreted in traditional common law applications.”98 With these
instructions, the Court finds Plaintiffs’ summary judgment evidence meets their initial burden
and supports a finding that Defendant Francisco is an employer under the FLSA.
By failing to respond to Plaintiffs’ discovery requests and the motion for summary
judgment, Defendant Francisco Garcia fails to show the existence of a genuine issue of material
fact on this issue.99 Thus, through his own admissions and the uncontroverted summary
judgment evidence, the Court finds that Defendant Francisco Garcia meets meaningful aspects of
the economic realities test and employed Plaintiffs.
ii. Defendant Blanca Medina Salinas
Defendant Blanca Medina Salinas admitted to employing, supervising, and paying each
Plaintiff for his work.100 Further, she hired Plaintiffs, set their schedules and assigned work
related tasks.101 She would “often scream at the employees” calling them “worthless” and telling
them to be “grateful” for giving them work.102
These admissions satisfy prongs one, two and three of the economic realities test.
Defendant Blanca Medina Salinas has also admitted to (1) not creating any written records of the
hours worked by Plaintiffs during their employment and (2) not providing written records of the

97

Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014)(citing Gray, 673 F.3d at 357).
McLaughlin v. Seafood, Inc., 867 F.2d 875, 877 (5th Cir. 1989)(per curiam), modifying 861 F.2d 450 (5th
Cir.1988).
99
See Celotex Corp., 477 U.S. at 323-25.
100
Dkt. No. 18, Exh. E, RFA Nos. 3-5.
101
See Declaration of Jose Manuel Arciga Garcia; Declaration of Sandro Alejandro Garcia Moreno.
102
See id. at p. 2.
98

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hours worked by Plaintiffs.103 Accordingly, it is not possible for Plaintiffs to establish the fourth
prong of the test (that Defendant Blanca Medina Salinas maintained employment records) as she
has admitted to not creating the written records and failed to provide them.
“The dominant theme in the case law is that those who have operating control over
employees within companies may be individually liable for FLSA violations committed by the
companies.”104 Defendant Blanca Medina Salinas admits to exercising such control over
Plaintiffs even though she was not the legal owner of Pollos Medina. For the reasons stated in the
prior analysis, the Court concludes that Plaintiffs’ summary judgment evidence establishes that
Defendant Blanca Medina Salinas satisfies sufficient prongs of the economic realities test. By
failing to respond to Plaintiffs’ discovery requests and the motion for summary judgment,
Defendant Blanca Medina Salinas fails to show the existence of a genuine issue of material fact
on this issue.105 Thus, through her own admissions and the uncontroverted summary judgment
evidence, the Court finds that Defendant Blanca Medina Salinas can be considered to be an
employer of Plaintiffs.
iii. Defendant Francisco Garcia Rodriguez
Defendant Francisco Garcia Rodriguez admitted to employing, supervising, and paying
each Plaintiff for his work.106 He insulted Plaintiffs at work, specifically when they asked for
days off work or refused to work extra hours without pay. 107 Additionally, sometime during
November 2014, he beat Plaintiff Moreno.108 Defendant Francisco Garcia Rodriguez has also

103

Dkt. No. 18, Exh. E, at RFA Nos. 1-2.
Gray v. Powers, 673 F.3d 352, 357 (5th Cir. 2012).
105
See Celotex Corp., 477 U.S. at 323-25.
106
Dkt. No. 18, Exh. E, RFA Nos. 3-5.
107
See Declaration of Jose Manuel Arciga Garcia at p. 2; Declaration of Sandro Alejandro Garcia Moreno at p. 2.
108
Id.; see also Dkt. No. 18, Exh. E, at RFA No. 21.
104

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admitted to (1) not creating any written records of the hours worked by Plaintiffs during their
employment and (2) not providing written records of the hours worked by Plaintiffs.109
To satisfy the first element of the economic realities test, Plaintiffs have to present
evidence to show that Defendant Francisco Garcia Rodriguez had the power to hire and fire
them. There is some evidence before the Court to satisfy this prong as Defendant Francisco
Garcia Rodriguez admits to employing Plaintiffs. Although there is no evidence that Defendant
Francisco Garcia Rodriguez had authority to fire Plaintiffs, “this failure is not fatal” as “each
element need not be present in every case.”110 Accordingly, the Court will analyze the evidence
as it applies to the other factors of the economic reality test.111
Plaintiffs’ summary judgment evidence, specifically Defendant Francisco Garcia
Rodriguez’s admissions, certainly satisfies the second and prongs of the economic realities
test.112 As noted in the earlier analysis, in this case it is not possible for Plaintiffs to show that
Francisco Garcia Rodriguez maintained employment records because he has admitted to not
creating written records and has failed to provide them. For the reasons stated in the prior
analysis, the Court concludes that Plaintiffs’ summary judgment evidence establishes that
Defendant Francisco Garcia Rodriguez satisfies sufficient prongs of the economic realities test.
Although Plaintiffs have not established that he had the power to fire them, Defendant Francisco
Garcia Rodriguez’s admissions satisfy at least two prongs and so the economic realities test is
not rendered “meaningless.”113 By failing to respond to Plaintiffs’ discovery requests and the
motion for summary judgment, Defendant Francisco Garcia Rodriguez fails to show the

109

Dkt. No. 18, Exh. E, at RFA Nos. 1-2.
Orozco v. Plackis, 757 F.3d 445, 449 (5th Cir. 2014)(citation omitted).
111
See id.
112
Dkt. No. 18, Exh. E, at RFA No. 1.
113
See Orozco v. Plackis, 757 F.3d at 452(“finding employer status when none of the factors is present would make
the test meaningless.”).
110

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existence of a genuine issue of material fact on this issue.114 Thus, the Court concludes Francisco
Garcia Rodriguez is an employer of Plaintiffs.
In summary, after applying the economic reality test to each Defendant, the Court holds
that each Defendant is an employer of each Plaintiff within the meaning of the FLSA.
d. Liability
Summary judgment is justified here on the basis of Plaintiffs’ uncontroverted summary
judgment evidence, which includes Defendants’ deemed admissions. Plaintiffs need only
establish a prima facie case to satisfy their burden of proof in this case because Defendants have
admitted to not creating written records of the hours worked by Plaintiffs during their
employment and have admitted to not providing any written record of the hours worked by
Plaintiffs.115 Plaintiffs have proffered declarations, made under the penalty of perjury, attesting
that they were not paid minimum wage and were not properly compensated for their overtime
hours.116 Through these declarations, Plaintiffs have demonstrated the amount and extent of that
work as a matter of just and reasonable inference. In turn, Defendants have failed to respond.
Accordingly, because Defendants have failed to raise a genuine issue of fact on their liability
concerning the minimum wage and overtime dispute, Plaintiffs’ motion for summary judgment
as to their FLSA claim is GRANTED.
e. Damages
Having found Defendants liable for violations of the FLSA, the Court will in turn
determine the damages to which each Plaintiff is entitled. In support of their motion for summary

114

See Celotex Corp., 477 U.S. at 323-25.
Dkt. No. 18, Exh. E, RFA Nos. 1-2.
116
See Declaration of Jose Manuel Arciga Garcia; Declaration of Sandro Alejandro Garcia Moreno.
115

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judgment, Plaintiffs proffer declarations117 and damage calculations for each Plaintiff generated
from their declaration testimony.118 Plaintiff Garcia is entitled to $32,666.38 for unpaid wages.119
Further, Plaintiff Garcia is entitled to an additional equal amount as liquidated damages.120
Accordingly, Defendants owe Plaintiff Garcia $65,332.75. Plaintiff Moreno is entitled to
$21,353.94 for unpaid wages.121 Plaintiff Moreno is further entitled to an additional equal
amount as liquidated damages.122 Accordingly, Defendants owe Plaintiff Moreno $42,707.88.
V.

Attorneys’ Fees and Sanctions
Plaintiffs also seek attorneys’ fees and costs pursuant to the FLSA, 29 U.S. C. §216(b)

and the TMWA, Texas Labor Code 62.205.123 However, since Plaintiffs only move for summary
judgment under the FLSA,124 the Court will consider only awarding attorneys’ fees pursuant to
the FLSA. Under the FLSA, the Court “shall in addition to any judgment awarded to the plaintiff
or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the
action.”125
To determine the proper award of attorneys’ fees, the Court will calculate the Lodestar
fee: the result of multiplying the number of hours reasonably expended on the litigation by a
reasonable hourly billing rate.126 The Court will then consider the Lodestar fee in light of the

117

Dkt. No. 18, Exh. B (Declaration of Jose Manuel Arciga Garcia); Exh. C (Declaration of Sandro Alejandro
Garcia Moreno).
118
Id., Exh. F (damages calculation chart for Plaintiff Jose Manuel Arciga Garcia); Exh. G (damages calculation
chart for Plaintiff Sandro Alejandro Garcia Moreno).
119
Id., Exh. F.
120
29 U.S.C.A. § 216(b)(West).
121
Id., Exh. G.
122
29 U.S.C.A. § 216(b)(West).
123
Dkt. No. 18 at ¶ 54; Dkt. Nos. 14, 17.
124
Dkt. No. 18 at ¶ 54.
125
29 U.S.C.A. § 216(b) (West).
126
Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).

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factors set forth in Johnson v. Georgia Highway Express Inc.,127 and may, in its discretion, revise
the Lodestar amount accordingly.128
In support thereof, Efren C. Olivares, the attorney in charge for Plaintiffs, attaches a
declaration to the motion indicating the number of hours spent by Plaintiffs’ attorneys in this
matter. Mr. Olivares has “spent a total of 56.9 hours” on this case and argues a rate of $250 per
hour is reasonable in light of his experience, reputation and ability in these types of
controversies.129 Ms. Wallis Nader has spent a total of 18 hours working on Plaintiffs’ case and
her hourly billing rate was $150.130 Finally, Mr. Carlos Garcia spent 3 hours working on this case
and his typical hourly billing rate is $250.131 Previously in this case, the Court granted Plaintiffs’
motion to compel.132 The Court reiterates its earlier findings that awarding reasonable expenses
to Plaintiffs is appropriate here.
Having considered the declaration, and bearing in mind the nature of this litigation and
the work done to date, the Court finds that the amount of time spent by Plaintiffs’ attorneys is a
reasonable amount of time. Furthermore, considering this Court’s familiarity with hourly rate for
practice in this county, the Court agrees that the hourly rate as noted for each attorney to be
reasonable. The Lodestar amount thus calculated is $17,675.00.133 The Court has already
incorporated the Johnson factors pertinent to this analysis in its calculation and it finds the

127

488 F.2d 714, 717–19 (5th Cir.1974).
Id.
129
Dkt. No. 18, Exh. H at ¶ 7.
130
Id. at ¶ 8.
131
Id. at ¶ 9.
132
The Court notes that the attorneys’ fees requested by Plaintiffs in the motion for discovery sanctions have been
addressed through the awarding of reasonable attorneys’ fees. See Dkt. No.17 at ¶ 15(b). Although Plaintiffs request
the Court to grant further discovery sanctions, such sanctions are no longer necessary. See Dkt. No.17 at ¶ 15(c)-(d).
133
This figure is calculated by multiplying the number of hours worked by the hourly rate for each attorney and then
adding the amounts together. Using the Lodestar method, Mr. Efren’s amount is $14,225.00; Ms. Nader’s, $2,700;
and Mr. Garcia’s, $750.00.
128

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Lodestar amount does not need to be altered.

Therefore, the Court awards $17,675.00 in

attorneys’ fees.
Finally, Plaintiffs request the Court to order Defendants to pay the reasonable and
necessary costs associated with Defendants failure to appear for a deposition.134 Specifically,
Plaintiffs seek the “costs incurred for having to pay the Court Reporter’s and Spanish
interpreter’s appearance fees, in the amount of $665.00.”135 Accordingly, the Court GRANTS
Plaintiffs’ request for $665.00 in deposition costs, for a total award of $18,340.00 in reasonable
and necessary attorneys’ fees and costs.
VI.

Holding
For the foregoing reasons, the Court GRANTS judgment for Jose Manuel Arciga Garcia

and Sandro Alejandro Garcia Moreno and against Francisco Garcia, Francisco Garcia Rodriguez
and Blanca Medina Salinas, each d/b/a Pollos Medina. Judgment is hereby entered as follows:
1) Judgment against Francisco Garcia, Francisco Garcia Rodriguez and Blanca Medina
Salinas, as to Plaintiff Jose Manuel Arciga Garcia in the amount of $65,332.75 in
unpaid wages and liquidated damages;
2) Judgment against Francisco Garcia, Francisco Garcia Rodriguez and Blanca Medina
Salinas, as to Plaintiff Sandro Alejandro Garcia Moreno in the amount of $42,707.88
in unpaid wages and liquidated damages;
3) Plaintiffs’ reasonable and necessary attorneys’ fees and costs in the amount of
$18,340.00;
4) Judgment against Defendants is joint and several;136
5) Post-judgment interest shall accrue at the rate of 0.56%.137

134

Dkt. No. 17 at ¶ 15(a).
Id.; see also Dkt. No. 14, Exh. A(deposition notices); Exh. B(certificates of non-appearance); Exh. C(invoices).
136
See Lee v. Coahoma Cnty., Miss., 937 F.2d 220, 226 (5th Cir.1991)(“If an individual with managerial
responsibilities is deemed an employer under the FLSA, the individual may be jointly and severally liable for
damages resulting from the failure to comply with the FLSA.”).
137
See 28 U.S.C. § 1961(a) (2000) (Post-judgment interest “shall be calculated from the date of the entry of the
judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board
of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.”); Post135

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In turn, the Court CANCELS the pretrial conference scheduled for September 13, 2016.
This is a final judgment.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 18th day of August, 2016.
___________________________________
Micaela Alvarez
United States District Judge

Judgment Interest Rates, U.S. DISTRICT & BANKRUPTCY COURTS, SOUTHERN DISTRICT OF TEXAS,
http://www.txs.uscourts.gov/page/post-judgment-interest-rates (last visited August 18, 2016).

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