Case 7:15-cv-00314 Document 1 Filed in TXSD on 07/20/15 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS McALLEN DIVISION JOSE MANUEL ARCIGA GARCIA and SANDRO ALEJANDRO GARCIA MORENO, Plaintiffs, v. FRANCISCO GARCIA, a/k/a FRANCISCO GARCIA RODRIGUEZ, FRANCISCO GUERRA, and BLANCA MEDINA SALINAS, d/b/a POLLOS MEDINA, Defendants. § § § § § § § § § § § § § § § CIVIL ACTION NO. _________________ Jury Demanded ORIGINAL COMPLAINT Plaintiffs Jose Manuel Arciga Garcia and Sandro Alejandro Garcia Moreno (“Plaintiffs”) bring this action against Defendants Francisco Garcia, a/k/a Francisco Garcia Rodriguez, Francisco Guerra, and Blanca Medina Salinas, d/b/a Pollos Medina (“Defendants”). Plaintiffs respectfully show that Defendants failed to pay Plaintiffs wages owed for labor rendered in violation of state and federal law and bring this action for declaratory and injunctive relief, as well as damages and attorneys’ fees and costs, against Defendants for violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the Texas Minimum Wage Act (“TMWA”), Texas Labor Code § 62.001. JURISDICTION AND VENUE 1. This Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the FLSA, 29 U.S.C. § 201 et seq. 2. This Court has supplemental jurisdiction over Plaintiffs’ state law claims under 28 U.S.C. § 1367 because they are closely related to Plaintiffs’ FLSA claims within this Court’s original   1 Case 7:15-cv-00314 Document 1 Filed in TXSD on 07/20/15 Page 2 of 8 jurisdiction. All claims relate to Defendants’ failure to pay adequate wages and thus form part of the same case or controversy under Article 3 of the United States Constitution. 3. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), as the events complained of occurred in relation to work performed at the Pollos Medina restaurants located in Hidalgo County, Texas. PARTIES 4. Plaintiffs Sandro Alejandro Garcia Moreno and Jose Manuel Arciga Garcia are individuals residing in Hidalgo County, Texas. 5. Defendants Francisco Garcia, a/k/a Francisco Garcia Rodriguez, Francisco Guerra and Blanca Medina are individuals residing in Hidalgo County, Texas. 6. Defendants Francisco Garcia, a/k/a Francisco Garcia Rodriguez, Francisco Guerra, and Blanca Medina Salinas do business as Pollos Medina in Hidalgo Country, Texas. 7. Pollos Medina is a restaurant business engaged in the sale of grilled chicken at 4006 N. Conway Ave, Mission, Texas 78573; 2604 W. Mile 5 Road, Mission, Texas 78574; and 1612 N. La Homa Road, Suite B, Palmview, Texas 78574 in Hidalgo County. 8. Pollos Medina has filed an Assumed Name Certificate with the Hidalgo County Clerk as a sole proprietorship, listing Francisco Garcia as the owner. 9. Defendants can be served at their place of business, at 4006 N. Conway Ave., Mission, Texas 78573; 2604 W. Mile 5 Road, Mission, Texas 78574; or 1612 N. La Homa Road, Suite B, Palmview, Texas 78574.1 Service is requested.                                                                                                                 Pollos Medina’s Assumed Name Certificate lists the following address for owner Francisco Garcia: 1715 West Israel Avenue, Mission, TX 78573, which appears to be Defendant Francisco Garcia’s home address. If service is not possible at the business addresses listed for some reason, it may also be attempted at that address. 1   2 Case 7:15-cv-00314 Document 1 Filed in TXSD on 07/20/15 Page 3 of 8 STATEMENT OF FACTS 10. Defendants hired Plaintiff Sandro Alejandro Garcia Moreno to work at Defendants’ restaurants. 11. Defendants employed Mr. Garcia Moreno from at least December 2013 to about October 2014. 12. Mr. Garcia Moreno performed work for Defendants from at least December 2013 to about October 2014. 13. Mr. Garcia Moreno worked as a griller for Defendants. 14. As a griller for Defendants, Mr. Garcia Moreno handled and worked with “preparado,” Pollos Medina’s chicken marinade, which is imported from Mexico. 15. Defendants failed to pay Mr. Garcia Moreno a salary commensurate with the federal minimum wage. 16. Defendants paid Mr. Garcia Moreno approximately $45.00 a day from December 2013 to October 2014. 17. During his employment for Defendants, Mr. Garcia Moreno worked twelve-hour days, from approximately 9:00 a.m. to 9:00 p.m. 18. During his employment for Defendants, Mr. Garcia Moreno worked six days per 19. During his employment for Defendants, Mr. Garcia Moreno worked for Defendants week. more than forty (40) hours per week. 20. Defendants failed to pay Mr. Garcia Moreno time and a half for each hour worked over forty hours in a given workweek. 21. During Mr. Garcia Moreno’s employment with Defendants, Defendants set his work schedule and directed at which Pollos Medina location he was required to work.   3 Case 7:15-cv-00314 Document 1 Filed in TXSD on 07/20/15 Page 4 of 8 22. Defendants hired Plaintiff, Jose Manuel Arciga Garcia, to work at Defendants’ restaurants. 23. Defendants have employed Mr. Arciga Garcia since at least July 9, 2013. 24. At the time of filing this action, Mr. Arciga Garcia is employed by Defendants. 25. Mr. Arciga Garcia works as a griller for Defendants and also sweeps around the restaurant and loads and unloads ingredients. 26. As a griller, Mr. Arciga Garcia handles and works with Pollos Medina’s “preparado,” which is imported from Mexico, and he also unloads produce and other preparations for Defendants that are imported from Mexico. 27. Defendants have failed to pay Mr. Arciga Garcia a salary commensurate with the federal minimum wage. 28. During his first year working for Defendants, Mr. Arciga Garcia worked for $45.00 per day for twelve hours each day, from 8:00 a.m. to 9:00 p.m. 29. Currently, Mr. Arciga Garcia works for Defendants for $45.00 to $75.00 a day for up to fourteen hours each day, from around 8:30 a.m. to 10:30 p.m. from Monday to Friday (except Wednesdays when he is off some weeks), and up to fifteen hours each day on Saturdays and Sunday, from 7:30 a.m. to 10:30 p.m. 30. During his employment with Defendants, Mr. Arciga Garcia has worked more than forty (40) hours per week. 31. Defendants have failed to pay Mr. Arciga Garcia time and a half for each hour worked over forty in a given workweek. 32. During Mr. Arciga Garcia’s employment with Defendants, Defendants have set his work schedule and directed at which Pollos Medina location he is required to work.   4 Case 7:15-cv-00314 Document 1 Filed in TXSD on 07/20/15 Page 5 of 8 33. Based on information and belief, Pollos Medina has annual revenues of at least $500,000.00. 34. During their employment with Defendants, Plaintiffs have endured verbal, psychological, and even physical abuse at the hands of Defendants. 35. Plaintiffs fear that Defendants may retaliate against them for asserting their legal rights. If Defendants attempt any form of retaliation, Plaintiffs intend to avail themselves of the protection of this Court, as appropriate. CAUSES OF ACTION I. Violation of the Fair Labor Standards Act 36. Plaintiffs incorporate each of the foregoing paragraphs as if fully set forth herein. 37. At all times relevant to this action, Plaintiffs were employed by Defendants within the meaning of the FLSA, 29 U.S.C. § 203(d) and 29 U.S.C. § 203(g). 38. Defendants were employers of Plaintiffs within the meaning of the FLSA under 29 U.S.C. §§ 206 and 207. Defendants were integrally involved in running the Pollos Medina restaurants. Defendants exercised control over Plaintiffs’ work situations, including setting their work schedule, assigning them tasks, and directing at which Pollos Medina location they would work. 39. As employees of Defendants, Plaintiffs were engaged in commerce or in the production of goods for commerce or were employed in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of 29 U.S.C. § 203. 40. Defendants failed to maintain complete and accurate records of the hours Plaintiffs worked. 41. Defendants repeatedly and willfully violated, and continue to willfully violate, 29 U.S.C. § 206 by refusing to pay Plaintiffs the applicable federal minimum wage for all their work.   5 Case 7:15-cv-00314 Document 1 Filed in TXSD on 07/20/15 Page 6 of 8 42. Defendants repeatedly and willfully violated, and continue to willfully violate, 29 U.S.C. § 207 by refusing to pay Plaintiffs time and a half for each hour worked over forty (40) hours in a given week. 43. The above-described actions of Defendants violated Plaintiffs’ rights under the FLSA for which Plaintiffs are entitled to relief pursuant to 29 U.S.C. § 218(b). II. Violations of the Texas Minimum Wage Act 44. At all times relevant to this action, Plaintiffs were employed by Defendants within the meaning of the TMWA. Texas Labor Code § 62.0012(6). 45. During Plaintiffs’ employment, Defendants failed to pay Plaintiffs the state- mandated minimum wage for each hour that Plaintiffs worked. III. Promissory Estoppel and Unjust Enrichment 46. Acting in reasonable and detrimental reliance on Defendants’ promises regarding the terms and conditions of the employment arrangement, Plaintiffs performed various types of work for Defendants, including but not limited to grilling, waiting tables, cleaning, loading and unloading, all of which served to benefit Defendants. 47. Defendants intentionally designed their promises regarding the terms and conditions of the employment arrangement to induce or tacitly encourage Plaintiffs to rely on those promises, and to act thereon, to Plaintiffs’ detriment. 48. Plaintiffs’ conduct in reliance on Defendants’ promises was at all times known to Defendants. 49. If Plaintiffs establish Defendants’ liability, then Plaintiffs are entitled to compensation for their services provided in order to avoid the unjust enrichment of Defendants. 50. If Defendants are liable to Plaintiffs, then Defendants are also liable for damages directly caused by Plaintiffs’ reasonable and detrimental reliance on Defendants’ promises.     6 Case 7:15-cv-00314 Document 1 Filed in TXSD on 07/20/15 Page 7 of 8 RELIEF REQUESTED Declaratory Relief 51. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202 and Tex. Civ. Prac. & Rem. Code §§ 37.001-011. 52. This Court should declare that Defendants violated Plaintiffs’ rights under the FLSA and the TMWA. Monetary and Injunctive Relief 53. As a result of Defendants’ violations of federal and state law, Plaintiffs have suffered the following damages for which they are entitled to monetary and injunctive relief, including an order requiring Defendants to: a. cease their unfair and illegal labor practices; b. pay Plaintiffs underpaid wages based on Defendants’ failure to provide compensation commensurate with federal minimum wage and overtime law, plus an equal amount in liquidated damages; c. pay Plaintiffs underpaid wages based on Defendants’ failure to provide compensation commensurate with state minimum wage law, plus an equal amount in liquidated damages; and d. pay Plaintiffs for the value of Plaintiffs’ services rendered. Attorneys’ Fees 54. Plaintiffs seek reasonable and necessary attorneys’ fees and costs they have incurred and may incur in this action as a result of violations of the FLSA, 29 U.S.C. § 216(b), and the TMWA, Texas Labor Code 62.205. JURY DEMAND 55. Plaintiffs request that this case be decided by a jury. PRAYER 56. For these reasons, Plaintiffs respectfully request this Court to enter judgment against Defendants for the following:   7 Case 7:15-cv-00314 Document 1 Filed in TXSD on 07/20/15 Page 8 of 8 a. Plaintiffs’ unpaid minimum wages and overtime wages, and an equal amount in liquidated damages; b. The value of Plaintiffs’ services; c. Plaintiffs’ court costs and reasonable and necessary attorneys’ fees; d. A declaration that Defendants violated Plaintiffs’ rights under the FLSA and the TMWA; and e. Pre- and post-judgment interest as provided by law, costs of court, and such other and further relief to which Plaintiffs may be justly entitled. Dated: July 9, 2015. Respectfully submitted, /s/ Efren C. Olivares Efrén C. Olivares ATTORNEY-IN-CHARGE FOR PLAINTIFFS State Bar No. 24065844 Southern District of Texas Bar No. 1015826 Wallis Nader State Bar No. 24092884 Southern District of Texas Bar No. 2609150 Wayne Krause Yang State Bar No. 24032644 Southern District of Texas Bar No. 31053 SOUTH TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Alamo, TX 78516 (956) 787-8171 (phone) (956) 787-6348 (fax) efren@texascivilrightsproject.org Carlos Moctezuma Garcia Texas Bar No. 24065265 Southern District of Texas Bar No. 1081768 GARCÍA & GARCÍA, ATTORNEYS AT LAW P.L.L.C. P.O. Box 4545 McAllen, TX 78502 (956) 630-3889 (phone) (956) 630-3899 (fax) ATTORNEYS FOR PLAINTIFFS   8 Case 7:15-cv-00314 Document 1-1 Filed in TXSD on 07/20/15 Page 1 of 1 CIVIL COVER SHEET is 44 (Rev. 12oz) The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the ?linu and service ofpleadings or other papers as required bylaw, except as provided by local rules of court. This form, approved by the Judicial Conference of the purpose of initiating the Civil docket sheet. (SEE ON NEXT PAGE OF THIS lnited States in September 1974, is required for the use ofthe Clerk ofCourt for the I. DEFENDANTS GARCIA, JOSE and GARCIA MORENO. SANDRO ALEJANDRO County of Residence ot?First Listed Plaintiff HIDALGO US. CASES) NOTE: (C) Attorneys {Finn Mme, Address, and Attomeys (??Krroun) Wallis Nader, Eir?n C. Oiivares, Wayne Krause Yang, South Texas Civil Flights Project 1017 W. Hackberry Alamo, TX 78516 Phone: (956) 787~81 71 GARCIA, alkfa GARCIA RODRIGUEZ. GUERRA, and MEDINA SALINASI BLANCA dibi'a POLLOS MEDINA, County of Residence ot?Fitst Listed Defendant HIDALGO U. S. PLHATIFF CA SE3 0N1. )9 IN LAND CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. II. BASIS OF JURISDICTION (Pita-elm it?s: 01:230.: Only) CITIZENSHIP OF PRINCIPAL PARTIES {Pf?'t?c?rm ?A?"tu One Boxjor Franny} (For Diwrsinj? Critic?s 07th!) and One Boijr CI 1 US. Government 5 3 Federal Question PTF DEF PTF DEF Plaintiff S. Not a Pony) Citizen ofTin's State 1 CI 1 Incorporated or Principal Place [3 4 4 ofBusiness In This State Cl '2 U.S. Government Cl 4 Diversity Citizen of Another State CI 2 1:1 '2 Incorporated and Principal Place Cl 5 5 Defendant (Indicate township ofPur-tres in Item Hf) of Business In Another State Citizen or Subject ofa FJ 3 3 Foreign Nation Cl 6 CI 6 Foreign Country IV NATURE OF SUIT {Place on in One Box Only) 1' tears seasons. 10 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure Ci 4'22 Appeal '28 USC 158 CI 375 False Claims Act [20 Marine 310 Airplane 365 Personal Injury ofProperty '21 USC 831 El 4'23 CI 400 State Reapportionment 130 Miller Act 315 Airplane Product Product Liability CI 690 Other 23 USC 157 CI 410 Antitrust El ['40 Negotiable Liability CI 367 Health Care;( CI 430 Banks and Banking 0 150 Recovery of Overpayment 330 Assault. Libel 8: Phanmceutica] 450 Commerce 3: Enforcement of Judgment Slander Personal Injury CI 330 Copyrights 13 460 Deportation Cl 151 Medicare Act 13 330 Federal Entployers' Product Liability 330 Patent CI 470 Racketeer In?uenced and Cl 152 Recovery ofDefaulted Liability 363 Asbestos Personal 340 Traieimrk Corrupt Organizations Student Loans 340 Marine Injury Product Cl 480 Consumer Credit {Exclude-s Veterans) CI 345 Marine Product Liability .JEISIXOEIKIESECUKPEYF CI 490 CabletSat TV El [53 Recovery offh?erpayment Liability PERSONAL PROPERTY )3 710 Fair Labor Standards CI 86] MIA [1395tt] CI 850 SocuritiesiComrnoditiesi ofVeteran?s Bene?ts El 350 Motor Vehicle Cl 370 Other Fraud Act El 362 Black Lung (923) Exclunge CI 160 Stockholders' Suits CI 355 Motor Vehicle L1 J'i'l Truth in Lending f3 720 LaborfManagernent El 863 (405(g)} El 390 Other Statutory Actions CI 190 Other Contract Product Liability 380 Other Personal Relations CI 364 SSID Title XVI Cl 891 Agricultural Acts [3 195 Contract Product Liability 360 Other Personal Property Damage El 740 Railway Labor Act CI 865 RSI {405(gD 893 Environmental Matters CI 196 Franchise Injury Cl 335 Property Damage 1:1 751 Family and Medical l: 395 Freedom of Information Cl 362 Injury Product Liability Leave Act Act Medical Malpractice El 790 Other Labor Litigation 896 Arbitration IEE X?fl?t?i?il't'lm? ERISPXHEIEPKEEISOESEE El 791 Employee Retirement Cl 899 Athninistmtis'e Procedure 0 210 Land Condernmtion CI 440 Other Civil Rights Habeas Corpus: Income Security Act El 370 Taxes (US. Plaintiff ActfReview or Appeal of C1 220 Foreclosure r3 441 Voting 463 Alien Detainee or Defendant) Agency Decision Cl 230 Rent Lease S: Ejecmtent 442 Employment 0 510 Motions to Vacate 0 S71 IRS-"Third Party 950 Constitutionality of CI 240 Torts to Land El 443 Housingf Sentence '26 USC 7609 State Statutes CI 245 Tort Product Liability Accommodations Cl 530 General 290 All Other Real Property I3 445 Amer. wiDisabilities CI 535 Death Penalty Employment Other: CI 462 Naturalization Application 4-46 Amer. erisabilities - 540 Mandamus 3: Other (3 465 Other Immigration Other :3 550 Civil Rights Actions CI 448 Education Cl 555 Prison Condition 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an "in One. Box Oily) 1 Original CI 2 Removed from Proceeding State Court 13 4 Reinstated or Reopened 3 Remanded from Appellate Court Fair Labor Standards Act. 29 U.S.C. 20ia Brief description ofcause: VI. CAUSE OF ACTIOAT 5 Transferred from Another District (Speedy) Cite the US. Civil Statute under which you are ?lina (Do not terriers dr'r'errinyl: et seq, and the Texas Minimum Wage Act Texas Labor code 62.001 Litigation CI 6 Multidistrict Action to recover unpaid wages at Defendant's restaurants. seeking declaratory, injunctive and monetary relief. VII. REQUESTED IN Ci CHECK a: rats IS A CLASS ACTION 3 CHECK YES only ifdemanded in complaint: COMPLAINT: UNDER RULE 23, 50,000.00 JURY DEMAND: >31 Yes :1 No RELATED SeeJUDGE DOCKET NUMBER DATE Sig?Eyes or 07:09:2015 - 2 FOR omen use ONLY k?e RECEIPT a AMOUNT APPLYING IFP runes mo. runes