Case 1:18-cv-00746-JTN-ESC ECF No. 1 filed 07/05/18 PageID.

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

R. ALEXANDER ACOSTA, Secretary of Labor, )

United States Department of Labor, )
)
Plaintiff, )
)
v. )
)
LOS AMIGOS OF KALAMAZOO, INC., d/b/a )
LOS AMIGOS MEXICAN RESTAURANT ) Civil Action No.: 1:18-cv-746
LOS AMIGOS GRILL, INC., d/b/a )
LOS AMIGOS MEXICAN RESTAURANT ) Legal and equitable relief sought
RIVIERA MAYA, INC., d/b/a )
RIVIERA MAYA BAR AND GRILL, )
Michigan Corporations )
and FRANCISCO HERNANDEZ, FELIPE )
ORTIZ, ROSA BRAVO, MARCOS MATIAS )
and JUAN CARLOS ORTIZ, individuals, )
)
Defendants. )

COMPLAINT

Plaintiff, R. ALEXANDER ACOSTA, Secretary of Labor, United States

Department of Labor, brings this action to enjoin and restrain defendants LOS AMIGOS

OF KALAMAZOO, INC., d/b/a LOS AMIGOS MEXICAN RESTAURANT, LOS

AMIGOS GRILL, INC., d/b/a LOS AMIGOS MEXICAN RESTAURANT,

RIVIERA MAYA, INC., d/b/a RIVIERA MAYA BAR AND GRILL, Michigan

corporations (collectively “Corporate Defendants”), and FRANCISCO HERNANDEZ,

FELIPE ORTIZ, ROSA BRAVO, MARCOS MATIAS and JUAN CARLOS

ORTIZ, individuals, (collectively “Individual Defendants”), from violating the

provisions of sections 6, 7, 11, and 15 of the Fair Labor Standards Act of 1938, as

Amended (29 U.S.C. § 201 et seq.) (hereinafter, "the Act"), pursuant to section 17 of the
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Act; and to recover unpaid minimum wage and overtime compensation owing to

defendants’ employees together with an equal additional amount as liquidated damages,

pursuant to section 16(c) of the Act.

Jurisdiction of this action is conferred upon the Court by sections 16(c) and 17 of the

Act and 28 U.S.C. § 1345.

II

(A) LOS AMIGOS OF KALAMAZOO, INC., (hereinafter “Los Amigos of

Kalamazoo”), is and, at all times hereinafter mentioned, was a Michigan corporation with an

office located at 3317 Stadium Drive, Kalamazoo, Michigan 49008 in Kalamazoo County,

within the jurisdiction of this Court. Los Amigos Kalamazoo is and, at all times hereinafter

mentioned, was engaged in operating a restaurant and in the performance of related types of

activities.

(B) LOS AMIGOS GRILL, INC., (hereinafter “Los Amigos Grill”), is and, at all

times hereinafter mentioned, was a Michigan corporation with an office located at 7375 S.

Westnedge Avenue, Portage, Michigan 49002 in Kalamazoo County, within the jurisdiction

of this Court. Los Amigos Grill is and, at all times hereinafter mentioned, was engaged in

operating a restaurant and in the performance of related types of activities.

(C) RIVIERA MAYA, INC., (hereinafter “Riviera Maya”), is and, at all times

hereinafter mentioned, was a Michigan corporation with an office located at 5036 S.

Westnedge Avenue, Portage, Michigan 49002 in Kalamazoo County, within the jurisdiction

of this Court. Riviera Maya is and, at all times hereinafter mentioned, was engaged in

operating a restaurant and in the performance of related types of activities.

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(D) FRANCISCO HERNANDEZ is and, all times hereinafter, was an owner of

the Corporate Defendants, and actively supervised the day-to-day operations and

management of the Corporate Defendants in relation to their employees, including, but not

limited to supervising employees, determining pay practices and maintaining authority to hire

and fire employees of the Corporate Defendants. At all times hereinafter mentioned,

FRANCISCO HERNANDEZ is and was engaged in business within Kalamazoo County,

within the jurisdiction of this court. FRANCISCO HERNANDEZ acted directly or

indirectly in the interest of the Corporate Defendants in relation to their employees and is an

employer within the meaning of 29 U.S.C. § 203(d).

(E) FELIPE ORTIZ is and, all times hereinafter, was an owner of the Corporate

Defendants, and actively supervised the day-to-day operations and management of the

Corporate Defendants in relation to their employees, including, but not limited to supervising

employees, determining pay practices and maintaining authority to hire and fire employees of

the Corporate Defendants. At all times hereinafter mentioned, FELIPE ORTIZ is and was

engaged in business within Kalamazoo County, within the jurisdiction of this court. FELIPE

ORTIZ acted directly or indirectly in the interest of the Corporate Defendants in relation to

their employees and is an employer within the meaning of 29 U.S.C. § 203(d).

(F) ROSA BRAVO is and, all times hereinafter, was an owner of the Corporate

Defendants, and actively supervised the day-to-day operations and management of the

Corporate Defendants in relation to their employees, including, but not limited to supervising

employees, determining pay practices and maintaining authority to hire and fire employees of

the Corporate Defendants. At all times hereinafter mentioned, ROSA BRAVO is and was

engaged in business within Kalamazoo County, within the jurisdiction of this court. ROSA

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BRAVO acted directly or indirectly in the interest of the Corporate Defendants in relation to

their employees and is an employer within the meaning of 29 U.S.C. § 203(d).

(G) MARCOS MATIAS is and, all times hereinafter, was an owner of defendant

RIVIERA MAYA, and actively supervised the day-to-day operations and management of

the Corporate Defendants in relation to their employees, including, but not limited to

supervising employees, determining pay practices and maintaining authority to hire and fire

employees of the Corporate Defendants. At all times hereinafter mentioned, MARCOS

MATIAS is and was engaged in business within Kalamazoo County, within the jurisdiction

of this court. MARCOS MATIAS acted directly or indirectly in the interest of the Corporate

Defendants in relation to their employees and is an employer within the meaning of 29

U.S.C. § 203(d).

(H) JUAN CARLOS ORTIZ is and, all times hereinafter, was an owner of

defendant LOS AMIGOS OF KALAMAZOO, and actively supervised the day-to-day

operations and management of the Corporate Defendants in relation to their employees,

including, but not limited to supervising employees, determining pay practices and

maintaining authority to hire and fire employees of the Corporate Defendants. At all times

hereinafter mentioned, JUAN CARLOS ORTIZ is and was engaged in business within

Kalamazoo County, within the jurisdiction of this court. JUAN CARLOS ORTIZ acted

directly or indirectly in the interest of the Corporate Defendants in relation to their employees

and is an employer within the meaning of 29 U.S.C. § 203(d).

III

(A) Each of the Corporate Defendants is and, at all times hereinafter mentioned,

was engaged in related activities performed through unified operation or common control for

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a common business purpose, and, at all times hereinafter mentioned, was an enterprise within

the meaning of 29 U.S.C. § 203(r).

(B) Corporate Defendants at all times hereinafter mentioned, were engaged in

related activities performed through unified operation or common control for a common

business purpose, and, at all times hereinafter mentioned, constituted a single enterprise

within the meaning 29 U.S.C. § 203(r). Specifically, Individual Defendants controlled

Corporate Defendants by making unified strategic, operational, and policy decisions for

Corporate Defendants. Corporate Defendants have unified operations, including but not

limited to accounting and payroll, and Corporate Defendants share the common business

purpose of operating and managing restaurants.

IV

(A) Each of the Corporate Defendants is and, at all times herein after mentioned,

was an enterprise within the meaning of section 3(s)(1)(A) of the Act in that said enterprise at

all times hereinafter mentioned had employees engaged in the commerce or in the production

of goods for commerce, or employees handling, selling, or otherwise working on goods or

materials that have been moved in or produced for commerce by any person and in that said

enterprise had an annual gross volume of sales made or business done of not less than

$500,000.

(B) Corporate Defendants, at all times hereinafter mentioned, comprised a single

enterprise engaged in commerce or in the production of goods for commerce within the

meaning of 29 U.S.C. § 203(s)(1)(A) in that said enterprise, at all times hereinafter

mentioned, had employees engaged in commerce or in the production of goods for

commerce, or employees handling, selling, or otherwise working on goods or materials that

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have been moved in or produced for commerce by any person and in that said enterprise had

an annual gross volume of sales made or business done of not less than $500,000.

The Corporate Defendants and Individual Defendants repeatedly and willfully

violated the provisions of sections 6 and 15(a)(2) of the Act by paying employees wages

at a rate less than $7.25 per hour in workweeks when said employees were engaged in

commerce and 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 the Act, as aforesaid for all hours worked. Specifically, Defendants paid

kitchen staff, on a weekly basis, a set amount, regardless of the hours worked. Kitchen

staff routinely worked 50-60 hours a week. The kitchen workers’ set weekly

compensation divided by the weekly hours worked, resulted in payment of an hourly

wage less than the applicable minimum wage of $7.25 per hour. Defendants also paid

servers at rates less than the applicable minimum wage of $7.25 per hour. Specifically,

Defendants paid servers for 40 hours of work per week, regardless of the hours worked in

a workweek. Servers routinely worked more than 40 hours per week. The servers’ weekly

compensation divided by the weekly hours worked, resulted in payment of an hourly

wage less than the applicable minimum wage of $7.25 per hour.

VI

The Corporate Defendants and Individual Defendants repeatedly and willfully

violated the provisions of sections 7 and 15(a)(2) of the Act, by employing employees who in

workweeks were engaged in commerce or in the production of goods for commerce, or who

were employed in an enterprise engaged in commerce or in the production of goods for

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commerce, within the meaning of the Act, as aforesaid, for workweeks longer than 40 hours

without compensating said employees for their employment in excess of 40 hours per week

during such workweeks at rates not less than one and one-half times the regular rate at which

they were employed. Specifically, Defendants paid the kitchen staff a set amount for all

hours worked. Defendants failed to pay the half time premium for hours over 40 in a

workweek. Furthermore, Defendants paid servers for 40 hours of work per week, regardless

of the hours worked in a workweek. Defendants did not pay servers one and one-half times

the regular rate for hours over 40 in a workweek.

VII

The Corporate Defendants and Individual Defendants, employers subject to the

provisions of the Act, repeatedly and willfully violated the provisions of sections 11(c)

and 15(a)(5) of the Act in that they failed to make, keep, and preserve adequate and

accurate records of kitchen staff and server employees and the wages, hours and other

conditions and practices of employment maintained by them as prescribed by regulations

duly issued pursuant to authority granted in the Act and found in 29 C.F.R. Part 516.

Specifically, Defendants’ records failed to show adequately and accurately, among other

things, the hours worked each workday and the total hours worked each workweek with

respect to employees and the regular rates at which they were employed. In addition,

Defendants’ records were inaccurate, in part, because Defendants intentionally omitted

employees’ hours worked in excess of 40 hours in a workweek.

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VIII

During the period since August 27, 2014, the Corporate Defendants and Individual

Defendants have repeatedly and willfully violated the provisions of the Act as set forth

above. A judgment that enjoins and restrains such violations and includes the restraint of any

withholding of payment of unpaid minimum wage and overtime compensation found by the

court to be due to present and former employees under the Act is expressly authorized by

section 17 of the Act.

WHEREFORE, cause having been shown, plaintiff prays for judgment against

defendants as follows:

A. For an Order pursuant to section 17 of the Act, permanently enjoining and

restraining the defendants, their officers, agents, servants, employees, and those persons in

active concert or participation with them from prospectively violating the Act; and

B. For an Order:

1. pursuant to section 16(c) of the Act, finding defendants liable for

unpaid minimum wage and overtime compensation due defendants’ employees and for

liquidated damages equal in amount to the unpaid compensation found due their employees

listed in the attached Exhibit A (additional back wages and liquidated damages may be owed

to certain employees presently unknown to plaintiff for the period covered by this

complaint); or, in the event liquidated damages are not awarded,

2. pursuant to section 17 of the Act, enjoining and restraining the

defendants, their officers, agents, servants, employees, and those persons in active concert or

participation with defendants, from withholding payment of unpaid minimum wage and

overtime compensation found to be due their employees and pre-judgment interest computed

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at the underpayment rate established by the Secretary of the Treasury, pursuant to 26 U.S.C.

§ 6621;

C. For an Order awarding plaintiff the costs of this action; and

D. For an Order granting such other and further relief as may be necessary and

appropriate.

KATE S. O’SCANNLAIN
Solicitor of Labor

P.O. ADDRESS: CHRISTINE Z. HERI

Office of the Solicitor Regional Solicitor
U.S. Department of Labor
230 S. Dearborn St., Room 844 s/ Elizabeth Arumilli .
Chicago, Illinois 60604 ELIZABETH ARUMILLI
Telephone no.: 312/353-5738 Trial Attorney
Facsimile no.: 312/353-5698
E-mail:[email protected] s/ R. Jason Patterson .
[email protected] R. JASON PATTERSON
Trial Attorney

United States Attorney’s Office ANDREW B. BIRGE

Western District of Michigan U.S. Attorney
P.O. Box 208 Western District of Michigan
Grand Rapids, Michigan 49501
Telephone no.: 616/808-2031 RYAN D. COBB
Facsimile no.: 616/456-2510 Civil Division Chief
[email protected]

Attorneys for R. Alexander Acosta,

Secretary of Labor, United States
Department of Labor, Plaintiff